# The Tivo vs Echostar (mostly speculation) Thread



## Rob Glasser

*DISH Network Statement in Response to Federal Circuit Ruling in Tivo Inc. v. EchoStar Communications Corp.​*
* ENGLEWOOD, Colo. - April 11, 2008* - DISH Network Corporation (NASDAQ: DISH) issued the following statement regarding recent developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:

"We are disappointed that the Federal Circuit did not grant our petition for rehearing. The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling.

All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.

We intend to appeal the Federal Circuit's ruling to the United States Supreme Court."
# # #​*About DISH Network Corporation*
DISH Network Corporation (Nasdaq: DISH) provides more than 13.78 million satellite TV customers with industry-leading customer satisfaction, which has surpassed major cable companies for seven years running. DISH Network customers also enjoy access to a premier line of award-winning Digital Video Recorders (DVRs), hundreds of video and audio channels, the most International channels in the U.S., industry-leading Interactive TV applications, Latino programming, and the best sports and movies in HD. DISH Network offers a variety of package and price options including the lowest all-digital price in America, the DishDVR Advantage Package, high-speed Internet service, and a free upgrade to the best HD DVR in the industry. DISH Network is included in the Nasdaq-100 Index (NDX) and is a Fortune 300 company. Visit www.dishnetwork.com/aboutus or call 1-800-333-DISH (3474) for more information.


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## Richard King

> does not infringe the Tivo patent at issue in the Federal Circuit's ruling.


This is _*TERRIBLE *_wording for such a release.  What could be taken from this statement is "it doesn't infinge on the patent at issue, but it does infinge on other Tivo patents." Where do they get their script writers?


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## Steve

Richard King said:


> This is _*TERRIBLE *_wording for such a release.  What could be taken from this statement is "it doesn't infinge on the patent at issue, but it does infinge on other Tivo patents." Where do they get their script writers?


You're 100% right about the poor wording.

I haven't been following that closely, but are there other patent issues still hanging out there? Or does Echostar now just have to pay the judgement amount previously awarded, and that's the end of it, once and for all?

/steve


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## Richard King

Their normal writers must have returned to Hollywood after the strike was over.


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## keenan

Steve said:


> You're 100% right about the poor wording.
> 
> I haven't been following that closely, but are there other patent issues still hanging out there? Or does Echostar now just have to pay the judgement amount previously awarded, and that's the end of it, once and for all?
> 
> /steve


Unless the Supreme Court agrees to hear/rule on the appeal made by Dish, it's a done deal, all that remains is for the money to change hands or Dish works out a deal with TiVo.

I don't see the SC even putting this case on the calender.


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## davemayo

keenan said:


> I don't see the SC even putting this case on the calender.


I agree.


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## kog

keenan said:


> Unless the Supreme Court agrees to hear/rule on the appeal made by Dish, it's a done deal, all that remains is for the money to change hands or Dish works out a deal with TiVo.
> 
> I don't see the SC even putting this case on the calender.


Assuming the Supreme Court does not take up the appeal on this case (highly likely), I would expect Tivo to argue that the "fix" Dish deployed is still in violation of their patent and that the permanent injunction would go into effect. This will probably require a new trial so how soon that happens is anyone's guess. Though I suppose Tivo could ask for that check on past damages right now.


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## Curtis52

kog said:


> Assuming the Supreme Court does not take up the appeal on this case (highly likely), I would expect Tivo to argue that the "fix" Dish deployed is still in violation of their patent and that the permanent injunction would go into effect. This will probably require a new trial so how soon that happens is anyone's guess. Though I suppose Tivo could ask for that check on past damages right now.


By the time Dish is able to get a new trial, the DVR model numbers listed in the injunction will have been turned off for months if not years.


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## James Long

According to DISH, the software in question already HAS been turned off. 

_Armed marshals, with guns._


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## kog

James Long said:


> According to DISH, the software in question already HAS been turned off.
> 
> _Armed marshals, with guns._


It will be interesting to see Judge Folsom's reaction to that argument.


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## keenan

James Long said:


> According to DISH, the software in question already HAS been turned off.
> 
> _Armed marshals, with guns._


I thought it was as well, as early as a year or so ago.


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## Curtis52

Here is what the injunction (currently on hold) says:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.

Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


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## Slamminc11

DVR's are going to be fine. Nothing is going to be turned off.


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## FogCutter

The announcement basically changes the subject. The new software will have to be studied to determine if it really doesn't infringe on Tivo's patents. That will take time and possibly a new filing.

Tivo loses the ability to force dish to shut things down for a while, but they can still press for damages such as lost sales and revenue. Stuff like that. 

Dish can buy a lot of time with this, but still faces paying damages for loss of revenue (and anything else Tivo can come up with) caused by the infringing software. 

Curtis52's post reads "storage and playback from a hard disk of television data". If that is the language of the patent and is held as valid, then this isn't a software issue at all. Seems overly broad to me, but some patents are really encompassing. 

Tivo was one of the early champions of DVRs and they are slowly going broke. Everyone loved their idea so much they copied it and are underselling them all over the place. I think in the end Tivo will collapse. Win the court case, lose the war.


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## Hound

The legal fees for the supreme court appeal are more costs that will eventually be passed on to Dish subs. Just **** the higher costs of the sale and leaseback from the new Dish Network to the new Echostar.


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## langlin

I believe it should go the the Supreme Court. Trying to patent "time warping" is silly. In the 1950's and 60's Broadcast Television Stations in the mountain time zone were doing this 50 years ago. The networks, NBC, CBS and ABC feeds out of New York worked fine for the Eastern and Central Time Zones and the Pacific states were fed a feed from Hollywood but the Mountain States were forgotten so as soon as videotape machines became available in the 60's the stations developed their own "delay" system recording and playing back the East Coast feed anywhere from 15 minutes to two hours each night depending on the circumstance ( late sports events sometimes resulted in the 15 minute delay). 

Originally this was done with three or four machines and operators and then evolved into a single box, granted a large box, controlled by a computer that was user programable to delay programs. This was being done before the TIVO people were born. I don't think you should be able to patent an idea that has become common practice.


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## Curtis52

langlin said:


> I don't think you should be able to patent an idea that has become common practice.


Ideas cannot be patented. Methods and processes can be patented.


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## Steve

Curtis52 said:


> Here is what the injunction (currently on hold) says:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.
> 
> Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


Does this mean that only the VIP x22's are immune from the patent? And that there are approximately 200k of them in use right now? /steve


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## Curtis52

Steve said:


> Does this mean that only the VIP x22's are immune from the patent? And that there are approximately 200k of them in use right now? /steve


No, the VIPs came along after the lawsuit was filed. They would probably be covered by these words in the injunction:

"Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent. "

The VIP DVRs use the Broadcom chip process which was found to violate the patent.


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## minorthr

Dish's next statement should be where do we send the check? I would be extremely surprised if the SC decided to hear this case.


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## Win Joy Jr

langlin said:


> I believe it should go the the Supreme Court. Trying to patent "time warping" is silly. In the 1950's and 60's Broadcast Television Stations in the mountain time zone were doing this 50 years ago. The networks, NBC, CBS and ABC feeds out of New York worked fine for the Eastern and Central Time Zones and the Pacific states were fed a feed from Hollywood but the Mountain States were forgotten so as soon as videotape machines became available in the 60's the stations developed their own "delay" system recording and playing back the East Coast feed anywhere from 15 minutes to two hours each night depending on the circumstance ( late sports events sometimes resulted in the 15 minute delay).
> 
> Originally this was done with three or four machines and operators and then evolved into a single box, granted a large box, controlled by a computer that was user programable to delay programs. This was being done before the TIVO people were born. I don't think you should be able to patent an idea that has become common practice.


On what constitutional grounds do you believe that E* can appeal?

My bet, the USSC will not touch this. And until either the USSC issues a stay (takes 1 justice, I am not sure who has jursidiction here), or agrees to take the case.

So, the 30 day timer is running...


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## jacmyoung

Steve said:


> Does this mean that only the VIP x22's are immune from the patent? And that there are approximately 200k of them in use right now? /steve


200k from when the lawsuit started I think, and I don't know they even had the VIP's then, but they certainly are much more than 200k now.

The whole thing hinges on how true the DISH new software claim is. If it is true, then DVR's not on that list should be safe.

How will that be determined and by who? Some say the same judge should make that call but Judge Folsom had clearly shown his bias (rightfully so or not) therefore maybe DISH's next step is to ask for a new judge for the purpose of making that determination.

One step at a time to drag it out.


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## James Long

The 200k exempt machines are from BEFORE Tivo labeled their devices properly with "patent pending" or the patent numbers. I don't believe they are allowed to pick "any 200k" machines to fit that quota.

It's going to be a battle ... which is why I keep saying "armed marshals with guns" ... the only way that DISH would ever turn off the DVRs. Even if the injunction was restated today by the district court and the appropriate 30 day deadline set it means nothing to DISH. They firmly believe that their DVRs do not infringe. They will stand by that belief until a court rules their way or ... armed marshals with guns show up and force the software engineers to send the needed command/software.


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## CopyChief

Richard King said:


> This is _*TERRIBLE *_wording for such a release.  What could be taken from this statement is "it doesn't infinge on the patent at issue, but it does infinge on other Tivo patents." Where do they get their script writers?


This actually is technically correct legal writing. It doesn't play well outside legal circles, but to a lawyer, who had to approve this release, your second clause is not implied at all. There are no other patents in question, and the only patent in question is not infringed by the new, updated software. End of story. Patent lawyers -- and lawyers in general -- are very literal in that regard. (I worked for a few years in the mktg department in a law firm, and in some ways that was like being an icicle in hell.)


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## kog

jacmyoung said:


> 200k from when the lawsuit started I think, and I don't know they even had the VIP's then, but they certainly are much more than 200k now.


I believe the original DishPlayers are part of that 200k. I don't know how many of those are still left in service though. It certainly hasn't gone up since this lawsuit started.


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## dsp81

Win Joy Jr said:


> On what constitutional grounds do you believe that E* can appeal?
> 
> My bet, the USSC will not touch this. And until either the USSC issues a stay (takes 1 justice, I am not sure who has jursidiction here), or agrees to take the case.
> 
> So, the 30 day timer is running...


This is a copyright case so federal courts have original jursidiction. The Supreme Court is the court of last resort in the federal system and therefore has power to hear all cases in which a federal court has proper jurisdiction. Constitutional ground is only a consideration when a federal court would not have proper jurisdiction. For example, a state court case.


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## Herdfan

James Long said:


> They will stand by that belief until a court rules their way or ... armed marshals with guns show up and force the software engineers to send the needed command/software.


In reality, the court will continue to issue fines and damages and TiVo can sit back and keep raiding E*'s bank accounts.

And keep in mind, that Federal judges are powerful people and state lines mean nothing to them, so the Judge could issue a contempt order against Charlie and haul him to jail.


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## TBoneit

It was my understanding that the Dishplayers were what was counted in that 200k as the DVR portion was from Microsoft not Dish. 

I know of at least one still in service. It's my third DVR and a Overflow machine for the 622. It runs quiet and cool ever since I changed out the original 8Gb drive for a 2.5" laptop drive.


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## Newshawk

Win Joy Jr said:


> On what constitutional grounds do you believe that E* can appeal?
> 
> My bet, the USSC will not touch this. And until either the USSC issues a stay (takes 1 justice, I am not sure who has jursidiction here), or agrees to take the case.


Just a point of information. The Supreme Court is referred to as SCOTUS (Supreme Court of the United States), not USSC.


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## MIKE0616

Slamminc11 said:


> DVR's are going to be fine. Nothing is going to be turned off.


And you are sure of this why?


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## MIKE0616

Herdfan said:


> In reality, the court will continue to issue fines and damages and TiVo can sit back and keep raiding E*'s bank accounts.
> 
> And keep in mind, that Federal judges are powerful people and state lines mean nothing to them, so the Judge could issue a contempt order against Charlie and haul him to jail.


Apparently, some of chuckie's fanboys don't realize that E* could easily end up paying more in fines, additional awards, etc. than the original award does. Contempt of a Federal Court order is not something you really want to mess with, even chuckie is not THAT stupid. IF the armed feds show up, get ready to say, "remember when there was a satellite company that competed with D*?"  Yes, it really can get that bad and I think E*'s legal teams know that and will advise them as such.


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## jacmyoung

MIKE0616 said:


> Apparently, some of chuckie's fanboys don't realize that E* could easily end up paying more in fines, additional awards, etc. than the original award does. Contempt of a Federal Court order is not something you really want to mess with, even chuckie is not THAT stupid. IF the armed feds show up, get ready to say, "remember when there was a satellite company that competed with D*?"  Yes, it really can get that bad and I think E*'s legal teams know that and will advise them as such.


Please no one here is saying DISH will not pay more than the $90 mil. Don't pretend you are bringing in some shocking news.

The Dishplayers will not be affected. The VIP's are not on the list, but theoretically the Judge can include them if he wants to, but that will actually complicate things because it creats a chance for DISH to argue unfair treatment because the VIP's are not on the list and in DISH's view they no longer infringe, possibly putting the whole injunction on hold pending the determination of the new softeware claim.

Of course looking at the situations with DISH right now, Charlie may just relent and sign an agreement with Tivo. It is the last thing on earth he wants to do but he is also not going to ruin his company just to make a point.

A safe way for Tivo is to seek injunction on the DVR's on that list to force Charlies hand. The question is how well will that turn out. DISH is obviously trying to buy time, and one reason for such maybe they are preparing to swap out those old DVR's, and in such event the DISH subs will actaully be the winners.

Then the battle for shutting down all the new DVR's may start all over again by Tivo.


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## Curtis52

Blackberry case:

"On February 9, 2006, RIM announced that it had developed software workarounds that would not infringe the NTP patents, and would implement those if the injunction was enforced.

On March 3, 2006, after a stern warning from Judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a “full and final settlement of all claims.”


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## Greg Bimson

dsp81 said:


> This is a copyright case so federal courts have original jursidiction. The Supreme Court is the court of last resort in the federal system and therefore has power to hear all cases in which a federal court has proper jurisdiction. Constitutional ground is only a consideration when a federal court would not have proper jurisdiction. For example, a state court case.


Let's try this again...

This is a _patent_ case, so it is a federal issue.


jacmyoung said:


> The Dishplayers will not be affected. The VIP's are not on the list, but theoretically the Judge can include them if he wants to, but that will actually complicate things because it creats a chance for DISH to argue unfair treatment because the VIP's are not on the list and in DISH's view they no longer infringe, possibly putting the whole injunction on hold pending the determination of the new softeware claim.


The old Dishplayers (the 7100 and 7200) are not affected.

However, as to the complication of adding the new receivers to the list, it is already complicated by the fact that the judge may have to consider that Echostar and Dish Network no longer infringe. Simply because that door needs to be opened, almost every door will be opened.


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## jacmyoung

And let's not even forget there is also a simlpe alternative, DISH can agree to license Tivo's patent and all is resolved.

Now if anyone gets too excited about Charlie caving in to Tivo, let me just offer a few points here:

1) The biggest DBS provider, and the only one that has in fact a working agreement with Tivo--DirecTV, has already made it clear they no longer need Tivo, they went as far as buying ReplayTV to make such point known to Tivo.

2) The only other companies who currently have some form of licensing agreements with Tivo as far as Tivo's DVR patent, are a few cablecos, and most of them are very reluctant to even put those agreements to use.

3) Now let's look at DISH. There is no doubt DISH does not want to license Tivo, but since DISH curently is having so much bad luck lately Charlie may just decide to pick the battle and give up on this one. But you can bet he will not be an easy bargainer.

4) Tivo's "Time Warp" patent is very out-dated. It was developed in the old days when the DVR's were seriouely under-powered. The idea is to off load some indexing functions to devices other than the CPU so many of the DVR functions can be carried out.

5) Modern DVR's do not have to rely on such trick, they have enough computing power, which is what this new DISH patent was trying to demonstrate.

Therefore while it may look to people that DISH is desparate, in my view it is the opposite, Tivo should be the one to do anything in their power to secure a reasonable agreement with Charlie so they can have a foot in the door. And even if Tivo can manage that, there is still no guarantee that such agreement can be long term, as I said newer DVR's do not have to rely on this "Time Warp" patent at all.

So you see for Tivo to be successful in the long run, they need to convince DISH to pay for their license, not force them to pay the fine and get the court to enforce the injuntion, because even if they can do those, it will all amount to reducding DISH's standing in the TV business, it does nothing really much for Tivo, no one else is impacted, especially DirecTV.

And one way to persuade DISH might be to forgive all its past sins, if Tivo cares to look at the long term, a very shaky long term to begin with but at least the timing maybe right for Tivo to actually get something from DISH if they play it right.

Of course as I said the last thing charlie wants is to deal with Tivo, just that he may not have much choice given all the things he has to take care of right now.


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## jacmyoung

Curtis52 said:


> Blackberry case:
> 
> "On February 9, 2006, RIM announced that it had developed software workarounds that would not infringe the NTP patents, and would implement those if the injunction was enforced.
> 
> On March 3, 2006, after a stern warning from Judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a "full and final settlement of all claims."


And please allow me to point out that, while Blackberry was a much smaller company than DISH, and paid a much larger amount of fine than DISH will pay in this case, Blackberry is still alive and well.


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## Curtis52

jacmyoung said:


> And please allow me to point out that, while Blackberry was a much smaller company than DISH, and paid a much larger amount of fine than DISH will pay in this case, Blackberry is still alive and well.


There was no fine paid.


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## HobbyTalk

Some may think that TiVo would have the upper hand in any such license negotiations. Any license agreement also has to be fair and reasonable. Companies can and have been taken to court for anticompetitive behavior for requiring unreasonable licensing fees.


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## dsp81

Greg Bimson said:


> Let's try this again...
> 
> This is a _patent_ case, so it is a federal issue.The old Dishplayers (the 7100 and 7200) are not affected.


That is correct, I misspoke (or miswrote, if you like). Doesn't really matter because federal courts have original jurisdiction on both.


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## Curtis52

HobbyTalk said:


> Some may think that TiVo would have the upper hand in any such license negotiations. Any license agreement also has to be fair and reasonable. Companies can and have been taken to court for anticompetitive behavior for requiring unreasonable licensing fees.


TiVo is not required to grant a patent license. A patent is a legal monopoly. That's the whole point of a patent.


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## jacmyoung

Curtis52 said:


> TiVo is not required to grant a patent license. A patent is a legal monopoly. That's the whole point of a patent.


You and a few others continue to miss the point here.

It is not in Tivo's interest to just get paid that 200 mil and shut off some DISH DVR's and be done with it. The intent of the whole case was to make everyone take notice that they need to actively license Tivo's patent.

The logic was initally sound in that regard, but is less so now, as I stated DirecTV has already given Tivo the finger, and the outcome of this case will not change it. Cablecos continue to be relunctant.

So if Tivo's only interest is to get paid the fine and shut down some DISH DVR's they are suicidal, because DISH can easily ramp up the production of new DVR's to replace the old ones, and 200 mil is pocket change for just Charlie himself alone.

Keep in mind DISH is in the process of going full MPEG4 anyway, so it will be shooting two birds with one stone. Those MPEG2 DVR's belong in the landfill anyway.

A patent is uesless if no one is using it.


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## Steve

jacmyoung said:


> So if Tivo's only interest is to get paid the fine and shut down some DISH DVR's they are suicidal, because DISH can easily ramp up the production of new DVR's to replace the old ones, and 200 mil is pocket change for just Charlie himself alone.


You make an excellent point, IMO. $200 million is only going to help TiVo's balance sheet for a quarter or two. By accepting it and dropping any future litigation, they'd be winning a battle and perhaps losing the war.

I suspect they're just waiting for the cash so they can use it to pursue more litigation against DISH and others. /steve


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## Curtis52

jacmyoung said:


> You and a few others continue to miss the point here.


I never said TiVo would refuse to license. I'm just pointing out who has the upper hand in negotiations. Dish stands to lose $240 million per month in lost revenue if those DVRs get turned off with no guarantee that any replacement DVRs (at a hardware cost of $billions) wouldn't also infringe. I'm guessing those millions of ex-customers that migrate to cable or DirecTV out of necessity might never go back to Dish anyway.


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## righton2

jacmyoung said:


> You and a few others continue to miss the point here.
> 
> It is not in Tivo's interest to just get paid that 200 mil and shut off some DISH DVR's and be done with it. The intent of the whole case was to make everyone take notice that they need to actively license Tivo's patent.
> 
> The logic was initally sound in that regard, but is less so now, as I stated DirecTV has already given Tivo the finger, and the outcome of this case will not change it. Cablecos continue to be relunctant.
> 
> So if Tivo's only interest is to get paid the fine and shut down some DISH DVR's they are suicidal, because DISH can easily ramp up the production of new DVR's to replace the old ones, and 200 mil is pocket change for just Charlie himself alone.
> 
> Keep in mind DISH is in the process of going full MPEG4 anyway, so it will be shooting two birds with one stone. Those MPEG2 DVR's belong in the landfill anyway.
> 
> A patent is uesless if no one is using it.


You say a patent is useless if no one is using it. THAT IS PRECISELY THE POINT. The process that is patented is being used and will drive license deals to Tivo. Unless of course, you think Judge Folsom will delay the injunction while they decide whether the workaround does not violate the patent. I have my doubts as this statement from judge Folsom after lower court verdict. 
Judge Folsom explains in the introduction to Section IV of his opinion:

Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff - Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiff's DVRs. The availability of the infringing products leads to loss of market share for Plaintiff's products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm - Plaintiff is losing market share at a critical time in the market's development, market share that it will not have the same opportunity to capture once the market matures.


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## HobbyTalk

That is unless the current software no longer infringes on the patent. Then they no longer continue to suffer irreparable harm.


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## jacmyoung

righton2 said:


> You say a patent is useless if no one is using it. THAT IS PRECISELY THE POINT. The process that is patented is being used and will drive license deals to Tivo. Unless of course, you think Judge Folsom will delay the injunction while they decide whether the workaround does not violate the patent.


I don't know if you were trying to agree with me or not. The point is Tivo's goal should be to get DISH to use it (meaning pay for it), rather to get DISH not to by shutting them down.



> I have my doubts as this statement from judge Folsom after lower court verdict.
> Judge Folsom explains in the introduction to Section IV of his opinion:
> 
> Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff - Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiff's DVRs. The availability of the infringing products leads to loss of market share for Plaintiff's products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm - Plaintiff is losing market share at a critical time in the market's development, market share that it will not have the same opportunity to capture once the market matures.


Which was why I said before since Judge Folsom had clearly demonstrated his bias, rightfully so or not, if he should render a decision about the validity of the DISH new software, and rule against DISH, the past evidence is substantial to point out a partial judgment, and therefore a new judge should be installed to make an impartial judgment.

The game plan is of course to delay the process, and buy time to alleviate any service interruption should the worst become reality.


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## righton2

jacmyoung said:


> I don't know if you were trying to agree with me or not. The point is Tivo's goal should be to get DISH to use it (meaning pay for it), rather to get DISH not to by shutting them down.
> 
> Which was why I said before since Judge Folsom had clearly demonstrated his bias, rightfully so or not, if he should render a decision about the validity of the DISH new software, and rule against DISH, the past evidence is substantial to point out a partial judgment, and therefore a new judge should be installed to make an impartial judgment.
> 
> The game plan is of course to delay the process, and buy time to alleviate any service interruption should the worst become reality.


YOU SAY <Tivo's goal should be to get DISH to use it (meaning pay for it)>

*I believe that has been Tivo's goal all along. The problem has been that E* chose to use Tivo's IP (not pay for it) and then deny the fact that they did so as concluded by the jury, federal judge in Texas, and then by federal circuit judges in DC. *

So Folsom is biased, the jury is biased, the federal circuit judges are biased, and a new judge will be authorized to proceed over new trial regarding a workaround software solution that E* has developed. _I think you are delusional_. Good luck on that one.:lol:


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## BNUMM

Tivo could also bring up the "Doctrine of Equivalents" which has already been decided by the Supreme Court.


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## Greg Bimson

jacmyoung said:


> Which was why I said before since Judge Folsom had clearly demonstrated his bias, rightfully so or not, if he should render a decision about the validity of the DISH new software, and rule against DISH, the past evidence is substantial to point out a partial judgment, and therefore a new judge should be installed to make an impartial judgment.


Hold on.

"Judge Folsom had clearly demonstrated his bias?"

Uh, this "bias" was reaffirmed by the Court of Appeals and also reaffirmed by the denail of the _en banc_ request at the Court of Appeals.

There is probably some kind of case law in instances like this. However, it could be possible to have the injunction lifted, if Dish Network and Echostar prove to this judge that the new software no longer infringes. Otherwise, the injunction will stand in its current form, and there is absolutely no bias there.

Anyone know of a case law where an injunction was lifted because software was made to no longer infringe?

I can think of two cases where a workaround may have been possible, and in each case, the defendant settled.


----------



## Steve

Greg Bimson said:


> I can think of two cases where a workaround may have been possible, and in each case, the defendant settled.


Assume one of the cases you're referring to is the Blackberry settlement in '06. Blackberry paid the $600 million, but what was the final resolution? Did they ultimately deploy the work-around s/w, or license the patent they violated? If the latter, are they still paying NTP, above and beyond the settlement? /steve


----------



## jacmyoung

Now I dont know whose fault it is, maybe my English is bad, or maybe some of you can't read even a little beyond the 1st grade level. So let me try this one more time:

Yes, Tivo has always wanted everyone to pay, including DISH, yes DISH did not pay and yes the court ruled DISH must pay now AND shut off all offending DVR's on the list. Clear?

Now my point is AT THE CURRENT TIME, Tivo's goal continues to be, at least IMO, to get DISH to pay in the future, meaning to force DISH to sign some kind of license agreement so Tivo can have a steady revenue stream into the future. So tell me how can Tivo achieve that if they insist the injunction to carry through? If DISH must shut off all the DVR's how is Tivo going to continue to get any revenue from DISH in the future?

Secondly, when I said Judge Folsom is biased, I was specifically discussing this potential new ruling on the validity of the DISH new claim that their new software no longer infringes.

Of course the Judge, the jury and the appeals court were "biased" because they found in favor of Tivo. But that was not my point.

My point is, when determining whether DISH's new software claim is valid or not, DISH should have the right to an impartial judge, jury or whatever, to make that decision. Any appearrance of partiality as shown by Judge Folsom during the past trial, can be ground to disallowing him to make such judgment on this new claim, and a new judge should be allowed to ensure impartiality on the new software claim determination.

Now I am done explaining, if you still don't get it, either I am no good at English, or you guys need to go back to grade school, but either way I am not going to waste any more time on this. I have more than once been blamed by the mods for talking too much


----------



## righton2

Greg Bimson said:


> Hold on.
> 
> "Judge Folsom had clearly demonstrated his bias?"
> 
> Uh, this "bias" was reaffirmed by the Court of Appeals and also reaffirmed by the denail of the _en banc_ request at the Court of Appeals.
> 
> There is probably some kind of case law in instances like this. However, it could be possible to have the injunction lifted, if Dish Network and Echostar prove to this judge that the new software no longer infringes. Otherwise, the injunction will stand in its current form, and there is absolutely no bias there.
> 
> Anyone know of a case law where an injunction was lifted because software was made to no longer infringe?
> 
> I don't know of a case that went that far, and I don't think this will either. E* claims to have already implemented non-infringing software. If they are wrong and work around is found to still be violating the Tivo IP, not only will they pay more to Tivo, but E* stockholders and some of you subscribers will be lined up to sue E* for malfeasance. Charley better settle, even if he truly thinks he has a workaround. Otherwise, his troubles with this case may be just beginning.
> 
> I can think of two cases where a workaround may have been possible, and in each case, the defendant settled.


*I don't know of a case that went that far, and I don't think this will either. E* claims to have already implemented non-infringing software. If they are wrong and work around is found to still be violating the Tivo IP, not only will they pay more to Tivo, but E* stockholders and some of you subscribers will be lined up to sue E* for malfeasance. Charley better settle, even if he truly thinks he has a workaround. Otherwise, his troubles with this case may be just beginning.*
Ok... Rimm and NTP. The other one????


----------



## righton2

jacmyoung said:


> Now I dont know whose fault it is, maybe my English is bad, or maybe some of you can't read even a little beyond the 1st grade level. So let me try this one more time:
> 
> Yes, Tivo has always wanted everyone to pay, including DISH, yes DISH did not pay and yes the court ruled DISH must pay now AND shut off all offending DVR's on the list. Clear?
> 
> Now my point is AT THE CURRENT TIME, Tivo's goal continues to be, at least IMO, to get DISH to pay in the future, meaning to force DISH to sign some kind of license agreement so Tivo can have a steady revenue stream into the future. So tell me how can Tivo achieve that if they insist the injunction to carry through? If DISH must shut off all the DVR's how is Tivo going to continue to get any revenue from DISH in the future?
> 
> Secondly, when I said Judge Folsom is biased, I was specifically discussing this potential new ruling on the validity of the DISH new claim that their new software no longer infringes.
> 
> Of course the Judge, the jury and the appeals court were "biased" because they found in favor of Tivo. But that was not my point.
> 
> My point is, when determining whether DISH's new software claim is valid or not, DISH should have the right to an impartial judge, jury or whatever, to make that decision. Any appearrance of partiality as shown by Judge Folsom during the past trial, can be ground to disallowing him to make such judgment on this new claim, and a new judge should be allowed to ensure impartiality on the new software claim determination.
> 
> Now I am done explaining, if you still don't get it, either I am no good at English, or you guys need to go back to grade school, but either way I am not going to waste any more time on this. I have more than once been blamed by the mods for talking too much


*I graduated from grade school and your English is fine. but....you are delusional in how this will be dealt with in the legal system. Let's say you are correct and E* gets another impartial judge to preside or decide if the new software infringes. Then... the new judge and or jury conclude that it still infringes. Meanwhile another software upgrade is deployed and E* claims that it does not infringe. So the system has been gamed and I don't think the judges are gonna let that precedent take place. That is likely what happened with Rimm and NTP... the judge sternly warned RIMM to settle. (even though RIMM claimed to have new non-infringing software) I think Charley is one of those execs that will need to have it explained to him in no uncertain terms that he doesn't rule the world and the consequences for gaming and mocking the legal system can result in serious damage to him and his company.*
If your point is that E* should get another judge because he is biased... *Fine, but it ain't gonna happen*. I wish I was playing in the Master's right now....but that's called wishful thinking.


----------



## Greg Bimson

As Steve and righton2 mentioned, one is NTP v. RIMM (the Blackberry case), the other is Verizon v. Vonage, which I've since found out there wasn't even a work around.


Steve said:


> Assume one of the cases you're referring to is the Blackberry settlement in '06. Blackberry paid the $600 million, but what was the final resolution? Did they ultimately deploy the work-around s/w, or license the patent they violated? If the latter, are they still paying NTP, above and beyond the settlement? /steve


The final resolution? RIMM, the makers of Blackberry, paid NTP the $612 million.

A few weeks later, as I understand it, the patent was thrown out.


----------



## kog

For Dish DVR subscribers, I doubt they need to worry about their DVR's getting turned off anytime soon (within a year). There are still many ways that Dish can drag this case out. First is the SCOTUS appeal, they have 90 days to file that appeal but the SCOTUS term ends in June and won't be back till Oct. So if Dish files late near the end of that 90 day window, they won't get a response till near end of the year. Once it's rejected (as most people suspect it will), it will then go back to Texas at which point Dish will argue that the injunction is no longer needed because of the new software. Only way to prove this is by another trial, during which time Dish will probably be able to successfully argue for a stay of the inunction. And if Judge Folsom denies that, they can again always appeal that judgement. So there are still quite a few hands for Dish to play out. In the end Charlie will probably pay out more in fines + lawyer fees than just licensing the Tivo software. But that's just the way Charlie is. And without a licensing agreement Tivo isn't exactly going to be making a lot of money on this either because they have hired some of the best (ie highest priced) attorneys in the field so their lawyer bills aren't exactly small either. The real danger for Dish in this case is if Tivo can get the hardware claim put back in by using the 'doctrine of equivalents'. If that happens then Tivo will have a much stronger hand because they can then ask for an injunction on quite a lot more of Dish's DVR's.


----------



## Greg Bimson

jacmyoung said:


> My point is, when determining whether DISH's new software claim is valid or not, DISH should have the right to an impartial judge, jury or whatever, to make that decision. Any appearrance of partiality as shown by Judge Folsom during the past trial, can be ground to disallowing him to make such judgment on this new claim, and a new judge should be allowed to ensure impartiality on the new software claim determination.


The _verdict_ was that Echostar and Dish Network willfully infringed on the TiVo patent. By reading the judge's _opinion_, you've read bias.

What you've missed is that time is not on Dish Network's and Echostar's side. As to precedent, I am unsure what the outcome will be if Dish Network and Echostar ask to have the injunction lifted. That is why I've been continually stating sparks will fly when the case gets back to District Court. In most other patent cases I've read, the determination if new software does not infringe can be run separate from the existing injunction.

That is, once the case gets back to District Court, the judge can rule that Dish Network and Echostar can go ahead and prove they are no longer infringing by scheduling a hearing outside of the current proceedings. That means while Dish Network and Echostar try to prove they are no longer infringing, that the injunction will still stand after 30 days.

But it is slightly unpredictable at this time. If the judge does grant Dish Network and Echostar the ability to avoid the injunction by proving their software does not infringe, it is very possible that everything in dispute will be back on the table such as the newer DVR's and the hardware claims, because these are all issues that must be addressed in this case.


----------



## Steve

Greg Bimson said:


> The final resolution? RIMM, the makers of Blackberry, paid NTP the $612 million.
> 
> A few weeks later, as I understand it, the patent was thrown out.


That's unbelievable! Did RIMM get any money back, for settling under "vacated" cirumstances? /steve


----------



## Curtis52

kog said:


> First is the SCOTUS appeal, they have 90 days to file that appeal but the SCOTUS term ends in June and won't be back till Oct.


Dish will likely not be granted a stay.

"(2) Pending Petition for Certiorari.

(A) A party may move to stay the mandate pending 
the filing of a petition for a writ of certiorari 
in the Supreme Court. The motion must be 
served on all parties and must show that the 
certiorari petition would present a substantial 
question and that there is good cause for a 
stay. "


----------



## righton2

kog said:


> For Dish DVR subscribers, I doubt they need to worry about their DVR's getting turned off anytime soon (within a year). There are still many ways that Dish can drag this case out. First is the SCOTUS appeal, they have 90 days to file that appeal but the SCOTUS term ends in June and won't be back till Oct. So if Dish files late near the end of that 90 day window, they won't get a response till near end of the year. Once it's rejected (as most people suspect it will), it will then go back to Texas at which point Dish will argue that the injunction is no longer needed because of the new software. Only way to prove this is by another trial, during which time Dish will probably be able to successfully argue for a stay of the inunction. And if Judge Folsom denies that, they can again always appeal that judgement. So there are still quite a few hands for Dish to play out. In the end Charlie will probably pay out more in fines + lawyer fees than just licensing the Tivo software. But that's just the way Charlie is. And without a licensing agreement Tivo isn't exactly going to be making a lot of money on this either because they have hired some of the best (ie highest priced) attorneys in the field so their lawyer bills aren't exactly small either. The real danger for Dish in this case is if Tivo can get the hardware claim put back in by using the 'doctrine of equivalents'. If that happens then Tivo will have a much stronger hand because they can then ask for an injunction on quite a lot more of Dish's DVR's.


*The mandate for the injunctive remedy will be issued by next Friday April 18. The 30 day countdown will begin. Unless the Supremes step in and issue a stay, those Dish DVR's are gonna go down before the end of JUNE. That 90 day window that E* is counting on is unlikely as the denial from the CAFC took place without objection from any panelist judges. I'm inclined to believe that the Supreme Court will not issue a stay. So Charley's cards are bad and I expect he will fold in the next several weeks.*


----------



## Kheldar

Steve said:


> That's unbelievable! Did RIMM get any money back, for settling under "vacated" cirumstances? /steve


Blackberry announced the settlement on March 3, 2006:


> RIM has paid NTP $612.5 million in full and final settlement of all claims against RIM, as well as for a perpetual, fully-paid up license going forward. This amount includes money already escrowed by RIM to date.
> 
> The licensing and settlement agreement relates to all patents owned and controlled by NTP and covers all of RIM's products, services and technologies. NTP grants RIM an unfettered right to continue its business, including its BlackBerry® related business. The resolution permits RIM and its partners to sell RIM products and services completely free and clear of any claim by NTP, including any claims that NTP may have against wireless carriers, channel partners, suppliers or customers in relation to RIM products or services, (including BlackBerry Connect and Built-In technology), or in relation to third party products and services, to the extent they are used in connection with RIM products and services.


The original lawsuit involved 5 patents.

Within a couple months after the settlement, _one_ of those patents was thrown out by the Patent & Trademark Office. So, while NTP still had valid claims against the RIM BlackBerry, it may have ended in a smaller settlement.

No public record that I have found shows any refund issued of a portion of the settlement.


----------



## James Long

> I think you are delusional





> ... maybe some of you can't read even a little beyond the 1st grade level.


A mod says ...
Keep the insults out of the forums. Please discuss the issues without picking on each other.



righton2 said:


> Unless the Supremes step in and issue a stay, those Dish DVR's are gonna go down before the end of JUNE.


DISH will absolutely NOT be shutting down their DVRs. 99.999% certain on that ... armed marshals with guns certain on that ... not a single statement that DISH has made (other than the SEC required worst case scenarios) has recognized that possibility.

DISH's plan for the future is to do what they did last year ... remove the infringing code and run their DVRs on new code that does not infringe. If Tivo believes that the new code infringes they can spend the next 10 years in court proving it.

If DISH were to disable their DVRs they would be conceding the point ... and they are just not going to do that.

Moneywise ...
The issue at hand is the current judgement due Tivo and any increase for the time between when that judgement was granted and when it will be paid. That too is going to be held off as long as possible. Tivo will receive some payment eventually ... I would not count on it being any more than the current stated judgement this year. They will have to fight for the increase - through all levels of appeals possible.

This is the way DISH _is_ playing the game ... we can all sit at home and say why it won't work, but it is VERY CLEAR that DISH is not relenting as easily as some expect them to.


----------



## jacmyoung

Greg Bimson said:


> ...What you've missed is that time is not on Dish Network's and Echostar's side. As to precedent, I am unsure what the outcome will be if Dish Network and Echostar ask to have the injunction lifted. ...


I just figured out why you continue to argue with me on this because you misunderstood me again.

I never first assumed DISH will want the injunction lifted, only that if the Judge includes the VIP's in the injunction, there will be a good case to stay the injunction pending the determination of the new software claim, and if the judge then rules against the new DISH software claim, there is ground for appeal citing judge's past prejudice.

I said the above assumed the injunction of the old DVR's on the list would be carried out without adding the VIP's on the list. If so DISH will be in a tougher position to ask for anything, though there will still be chances. Except that Tivo might not even want to see this happen for reasons I stated before.

In the worst case scenario above, all the DVR's on the current list are shut out, there is still ample time to replace them, meanwhile all old DVR users will still be able to enjoy the TV service minus the DVR functions, and of course be credited back the DVR fees and maybe a couple of free PPV coupons each too, and a new battle for the VIP DVR's many arise again but it will take time to resolve. Assume that the DISH new software claim can stand on its own then Tivo will have an even tougher time than the current trial.

Like James said, even though I am not as optimistic as him about the prospect of the old DISH DVR's, it is clear Charlie does not want to concede and will go to the end of the earth to fight it, the only exception is now DISH is in a streak of bad press and events unfolded lately Tivo may have a chance to convince Charlie to settle, that is if Tivo is willing to make a deal that is acceptable to Charlie.


----------



## Curtis52

James Long said:


> DISH will absolutely NOT be shutting down their DVRs. 99.999% certain on that ... armed marshals with guns certain on that ... not a single statement that DISH has made (other than the SEC required worst case scenarios) has recognized that possibility.


You mean Dish didn't send out a press release and notices to all the DVR subscribers saying they might have to shut down their DVRs? ;-)


----------



## James Long

Curtis52 said:


> You mean Dish didn't send out a press release and notices to all the DVR subscribers saying they might have to shut down their DVRs?


Link to it, if you _know_ it exists.


----------



## Steve

jacmyoung said:


> In the worst case scenario above, all the DVR's on the current list are shut out, there is still ample time to replace them, meanwhile all old DVR users will still be able to enjoy the TV service minus the DVR functions, and of course be credited back the DVR fees and maybe a couple of free PPV coupons each too, and a new battle for the VIP DVR's many arise again but it will take time to resolve. Assume that the DISH new software claim can stand on its own then Tivo will have an even tougher time than the current trial.


Speaking for myself, if someone shut down my DVR, I wouldn't walk, I'd run! Even if my suddenly live-only TV service was free until they could get me a new DVR. /steve


----------



## spear61

Curtis52 said:


> You mean Dish didn't send out a press release and notices to all the DVR subscribers saying they might have to shut down their DVRs? ;-)


Quite the opposite. the last dish press release said "all" their DVR'S had new code downloaded and the customer can expect uninterrupted service. Mr. Long has it correct. Why worry about details when your provider tells you that your box will continue to perform it's functions? I bought it, it works, why worry?


----------



## Curtis52

jacmyoung said:


> In the worst case scenario above, all the DVR's on the current list are shut out, there is still ample time to replace them, meanwhile all old DVR users will still be able to enjoy the TV service minus the DVR functions, and of course be credited back the DVR fees and maybe a couple of free PPV coupons each too,


With the hard drive disabled, a DVR box is not capable of showing a picture. The screens would be black. "Live" TV shown on a DVR comes off the hard drive. The input to the D to A video converter comes straight from the output of the hard drive.


----------



## Greg Bimson

spear61 said:


> Quite the opposite. the last dish press release said "all" their DVR'S had new code downloaded and the customer can expect uninterrupted service. Mr. Long has it correct. Why worry about details when your provider tells you that your box will continue to perform it's functions? I bought it, it works, why worry?


Because we've been down this road before, on the distant network service issue.

For years, Dish Network said they'd find a way to keep distant network service. However, by cutting off all of their distant network subscribers once the injunction stay was lifted, that point was moot.

Dish Network said there wouldn't be a problem, but there was.

That's what this is all about. Again.


----------



## Greg Bimson

jacmyoung said:


> Like James said, even though I am not as optimistic as him about the prospect of the old DISH DVR's, it is clear Charlie does not want to concede and will go to the end of the earth to fight it, the only exception is now DISH is in a streak of bad press and events unfolded lately Tivo may have a chance to convince Charlie to settle, that is if Tivo is willing to make a deal that is acceptable to Charlie.


It is the other way around. Charlie does not want to cut off his subscribers. There will be one heck of a backlash, by using subscribers as pawns again. Charlie will have to strike an acceptable deal with TiVo.

And the further down this road it goes, the more cards TiVo has. Unless a hail mary shows up and the case is dismissed.


----------



## HobbyTalk

Greg Bimson said:


> That's what this is all about. Again.


Past E* cases have absolutely no bearing on the current case. Not sure why you keep bring them up? The only thing any other case (from any and all lawsuits) has on this one is that one side says they have a case and the other side says they don't. In the end one is proved wrong so in every case one side is "lying".


----------



## jacmyoung

Greg Bimson said:


> Because we've been down this road before, on the distant network service issue.
> 
> For years, Dish Network said they'd find a way to keep distant network service. However, by cutting off all of their distant network subscribers once the injunction stay was lifted, that point was moot.
> 
> Dish Network said there wouldn't be a problem, but there was.
> 
> That's what this is all about. Again.


I know you love to bring up this DNS suit to prove your point, but again you can't prove anything. The DNS suit was settled, had FOX not objected to the settlement it would have been resolved without the injunction because the suit would have been withdrawn after the settlement.

In the end DISH did not suffer much at all, and the local affilliates lost the share of that 70 million DISH would otherwise have paid them.

So let's not compare the two again, because if you insist on doing so, then you must also accept that the end result will be DISH not suffer much loss, and Tivo lose a big opportunity to make some big bucks. Is this your intent?


----------



## jacmyoung

Greg Bimson said:


> It is the other way around. Charlie does not want to cut off his subscribers. There will be one heck of a backlash, by using subscribers as pawns again. Charlie will have to strike an acceptable deal with TiVo.
> 
> And the further down this road it goes, the more cards TiVo has. Unless a hail mary shows up and the case is dismissed.


Of course you understand this is only your opinion, as my opinion was mine only. And we disagree. The longer DISH drags it out, the more likely they will be able to render those old DVR's irrelavent as the new DVR's take their places, and the longer it drags on, the more time DISH will have to iron out the way around the Tivo patent, even if they have not already done so.

If I were to bet, I would still bet against Charlie striking a deal with Tivo, but as I said due to the other issues that had recently arised, he may have to pick the battle, so the odds is more that they may settle, but I still place it at below 50%.


----------



## jacmyoung

righton2 said:


> *I graduated from grade school and your English is fine. but....you are delusional in how this will be dealt with in the legal system. Let's say you are correct and E* gets another impartial judge to preside or decide if the new software infringes. Then... the new judge and or jury conclude that it still infringes. Meanwhile another software upgrade is deployed and E* claims that it does not infringe. So the system has been gamed and I don't think the judges are gonna let that precedent take place. That is likely what happened with Rimm and NTP... the judge sternly warned RIMM to settle. (even though RIMM claimed to have new non-infringing software) I think Charley is one of those execs that will need to have it explained to him in no uncertain terms that he doesn't rule the world and the consequences for gaming and mocking the legal system can result in serious damage to him and his company.*
> If your point is that E* should get another judge because he is biased... *Fine, but it ain't gonna happen*. I wish I was playing in the Master's right now....but that's called wishful thinking.


You don't need to shout, we will just have to wait and see.

Keep in mind that your statement is based on a few assumptions, one of which is DISH is lying about the new software, the other the installment of a new judge to preside over the new software ruling may occur overnight.

The fact is you don't known the earlier and you are wrong about the latter.

And one more to consider when people try to compare the Blackberry case to this one. While the judge had issued stern warning to settle at that time, he had good reason to do so because ALL Blackberry products were under injunction, and the pressure was 100% on RIM.

In this case no matter how stern the judge can be, he can only warn about the DVR's on that list. He can not do anything to pressure DISH to do anything about the DVR's not on that list. If he wants to touch that part he must allow DISH to defend that their DVR's no longer infringe, and a determination is needed, likely by another panel.

So again let's compare apple to apple if you really want to. Don't pick and chose the facts that you like about those cases, and ingnore the others.


----------



## Greg Bimson

HobbyTalk said:


> Past E* cases have absolutely no bearing on the current case. Not sure why you keep bring them up? The only thing any other case (from any and all lawsuits) has on this one is that one side says they have a case and the other side says they don't. In the end one is proved wrong so in every case one side is "lying".





jacmyoung said:


> I know you love to bring up this DNS suit to prove your point, but again you can't prove anything. The DNS suit was settled, had FOX not objected to the settlement it would have been resolved without the injunction because the suit would have been withdrawn after the settlement.


Of course I bring this up. Did anyone bother to read what I responded to? When people simply say, "Why worry about details when your provider tells you that your box will continue to perform it's functions?" Because we've been down this road before. Just because a provider says their customers won't be affected doesn't mean it is true. Alas, this point is proven.

And there is too much reading into FOX getting the injunction enforced in the distant networks case. The judge said because the Court of Appeals mandated that he issue an injunction, he must issue it. Any possible "sign-off" on a settlement was moot, because the judge had to approve the settlement, and couldn't approve a settlement because the Court of Appeals told him to issue the injunction. Alas, that belongs on another thread...

But it also begs the point that jacmyoung says he read the patent filed by Echostar for the new software workings of a DVR. If jacmyoung is wrong because he believes FOX caused the problems with the injunction, it is also possible he is wrong in his interpretation of the proposed patent.


James Long said:


> DISH's plan for the future is to do what they did last year ... remove the infringing code and run their DVRs on new code that does not infringe. If Tivo believes that the new code infringes they can spend the next 10 years in court proving it.


Ah, but therein lies the rub...

There is an injunction which must be ruled upon by the District Court of Eastern Texas and Judge Folsom. It is entirely possible he allows a hearing to be held outside of his courtroom regarding the new software while upholding a permanent injunction which takes place 30 days after he rules. Which means even if it takes 10 years for Echostar and Dish Network to prove that the new software does not infringe on TiVo's patent, that may be about 9 years and 11 months after the injunction for willful infringement takes place.


----------



## righton2

James Long said:


> A mod says ...
> Keep the insults out of the forums. Please discuss the issues without picking on each other.
> 
> DISH will absolutely NOT be shutting down their DVRs. 99.999% certain on that ... armed marshals with guns certain on that ... not a single statement that DISH has made (other than the SEC required worst case scenarios) has recognized that possibility.
> 
> DISH's plan for the future is to do what they did last year ... remove the infringing code and run their DVRs on new code that does not infringe. If Tivo believes that the new code infringes they can spend the next 10 years in court proving it.
> 
> If DISH were to disable their DVRs they would be conceding the point ... and they are just not going to do that.
> 
> Moneywise ...
> The issue at hand is the current judgement due Tivo and any increase for the time between when that judgement was granted and when it will be paid. That too is going to be held off as long as possible. Tivo will receive some payment eventually ... I would not count on it being any more than the current stated judgement this year. They will have to fight for the increase - through all levels of appeals possible.
> 
> This is the way DISH _is_ playing the game ... we can all sit at home and say why it won't work, but it is VERY CLEAR that DISH is not relenting as easily as some expect them to.


It is very clear that time is quickly running out for E* in this case. _YOU SAY_ <DISH will absolutely NOT be shutting down their DVRs. 99.999% certain on that ... *armed marshals with guns certain on that*> I agree and hope it does'nt come to that, but for those that defy the law and court mandate, if it comes to that SO BE IT.


----------



## jacmyoung

Greg Bimson said:


> Of course I bring this up. Did anyone bother to read what I responded to? When people simply say, "Why worry about details when your provider tells you that your box will continue to perform it's functions?" Because we've been down this road before. Just because a provider says their customers won't be affected doesn't mean it is true. Alas, this point is proven...


My point is you can prove any point you want but if the end result is DISH suffers little, and the opposing party lose a chance for some big pay off, then what have you gained by proving your point?



> And there is too much reading into FOX getting the injunction enforced in the distant networks case. The judge said because the Court of Appeals mandated that he issue an injunction, he must issue it. Any possible "sign-off" on a settlement was moot, because the judge had to approve the settlement, and couldn't approve a settlement because the Court of Appeals told him to issue the injunction. Alas, that belongs on another thread...


The way I read it was, even if the settlement was not enforceable, it was because the law was poorly written. The lauguage of the law did not even allow settlement once an injunction was reached. Is this the case here?



> But it also begs the point that jacmyoung says he read the patent filed by Echostar for the new software workings of a DVR. If jacmyoung is wrong because he believes FOX caused the problems with the injunction, it is also possible he is wrong in his interpretation of the proposed patent.Ah, but therein lies the rub...


Of course I can be wrong, but if you were Tivo would you really just bet that jacmyoung is wrong, and roll the dice that way?



> There is an injunction which must be ruled upon by the District Court of Eastern Texas and Judge Folsom. It is entirely possible he allows a hearing to be held outside of his courtroom regarding the new software while upholding a permanent injunction which takes place 30 days after he rules. Which means even if it takes 10 years for Echostar and Dish Network to prove that the new software does not infringe on TiVo's patent, that may be about 9 years and 11 months after the injunction for willful infringement takes place.


True but again you continue to ignore the ability of DISH to replace those old DVR's in time to minimize the impact of the injunction. Again you can prove your point all you want, but if the end result is DISH suffers little, and Tivo still dont have a license agreement, then exactly what do you gain by simply proving your point?


----------



## James Long

Greg Bimson said:


> Because we've been down this road before, on the distant network service issue.
> 
> For years, Dish Network said they'd find a way to keep distant network service. However, by cutting off all of their distant network subscribers once the injunction stay was lifted, that point was moot.
> 
> Dish Network said there wouldn't be a problem, but there was.
> 
> That's what this is all about. Again.


Perhaps it is 20:20 hindsight, but I did not see the same level of confidence with distants as with the DVR issue. At the end of the day, DISH decided it was easier to drop distants and give up the battle than to continue to fight against a (reasonably) clear federal law. The injunction, as required by law, prohibited DISH from ever offering distants via that section of law.

That isn't the case here. DISH _firmly_ believes that they are no longer violating any patent. The injunction DOES NOT prohibit DISH from ever offering any DVR again. It prohibits DISH from offering the infringing DVRs ... and, in DISH's firmly stated and repeated opinion, their current DVRs do not infinge.

Not to say that there will not be some sort of financial settlement at some point ... continuing this argument isn't helping either company financially. Tivo would like to get paid the judgment and not have to keep fighting ... DISH would not mind a fair resolution either.


----------



## spear61

If I remember correctly, all hardware infringement claims were dismissed. That leaves the software claims. Dish says they have developed and downloaded non infringing software to all DVRs. So now, if someone dissagrees about that new software and "future" use of Dish DVRs, they can go to court with a new lawsuit and prove infringement. Payment for past infringements is another matter. They will either have to negotiate an agreement or pay the judgement for those actions.


----------



## jacmyoung

James Long said:


> ... Tivo would like to get paid the judgment and not have to keep fighting ... DISH would not mind a fair resolution either.


Obviously I have to agree with your assessment about the DNS case since I did not follow it closely. Again one can not simply use another case without considering special circumstances involved.

But I have to disagree with the above though. I think what Tivo really likes is to get a license agreement with DISH, not the judgment. And on the other hand DISH had not shown any admission at all that any resolution on the table is fair


----------



## James Long

Either way, they get paid. The injunction doesn't put money into Tivo's pocket, the judgment (and future licensing, if needed) will.


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## jacmyoung

spear61 said:


> If I remember correctly, all hardware infringement claims were dismissed. That leaves the software claims. Dish says they have developed and downloaded non infringing software to all DVRs. So now, if someone dissagrees about that new software and "future" use of Dish DVRs, they can go to court with a new lawsuit and prove infringement. Payment for past infringements is another matter. They will either have to negotiate an agreement or pay the judgement for those actions.


Yes Greg and I had argued on this one point on the last thread so much so to the point James started a special thread for us to fight over, and after about 7 pages, Greg has yet to bring this hardware issue up again so I hope he does not care to dispute this one anymore, but I could be wrong.

Of course it might just be that he fears James will lock us in a small room together again


----------



## James Long

Well, this thread has turned into PART of the reason why the spin-off was created.
Tivo and How Courts Operate (Spin Off) remains open ...

TiVo wins injunction reinstement and damages is where people can find other discussion prior to this thread.


Curtis52 said:


> "In sum, because of a failure of proof of literal infringement, we reverse the judgment of infringement of the hardware claims with respect to all of the accused devices. We remand for any further proceedings that may be necessary with respect to those claims. We affirm the judgment of infringement of the software claims with respect to all of the accused devices. Because the damages calculation at trial was not predicated on the infringement of particular claims, and because we have upheld the jury's verdict that all of the accused devices infringe the software claims, we affirm the damages award entered by the district court. The district court's injunction was stayed during the course of these proceedings. The stay that was issued pending appeal will dissolve when this appeal becomes final. At that time, the district court can make a determination as to the additional damages, if any, that TiVo has sustained while the stay of the permanent injunction has been in effect. Each party shall bear its own costs for this appeal.
> AFFIRMED IN PART, REVERSED IN PART, and REMANDED. "


----------



## audiomaster

I know what I would do if I had Charlie's money. I would sell all my stock, shut down the company, fire everybody, sell all the equipment and sats to AT&T or Verizon so they could start thier own sat service. Then I would take a very long fishing trip, probably in a country without extradition to the US! And laugh like hell at how long I had been able to screw over those people with 921s and other stuff that didn't work right for months (or ever) and got away with it! Who needs this kind of aggravation?


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## Curtis52

spear61 said:


> Dish says they have developed and downloaded non infringing software to all DVRs.


This is nothing new. Dish has said all along that their software doesn't infringe. A jury, a district court judge, and three appeals court judges disagree. Dish still says their software doesn't infringe.


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## jacmyoung

audiomaster said:


> I know what I would do if I had Charlie's money. I would sell all my stock, shut down the company, fire everybody, sell all the equipment and sats to AT&T or Verizon so they could start thier own sat service. Then I would take a very long fishing trip, probably in a country without extradition to the US! And laugh like hell at how long I had been able to screw over those people with 921s and other stuff that didn't work right for months (or ever) and got away with it! Who needs this kind of aggravation?


You know one of my uncles is a very successful business man, started from scratch, I have asked him why even at his age not take a break and enjoy a fishing trip in style? He said what made him to live to see another day is the prospect of him, personally, still able to make a lot of money. Nothing else really matters that much to him (aside from his family of course), not even how much money he already had mattered.


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## Herdfan

spear61 said:


> If I remember correctly, all hardware infringement claims were dismissed.


I may be wrong, but I don't think they were dismissed, but instead remanded back to the District Court to be retried using a different standard. It would be at TiVo's option to ask for a retrial.


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## Kheldar

Herdfan said:


> I may be wrong, but I don't think they were dismissed, but instead remanded back to the District Court to be retried using a different standard. It would be at TiVo's option to ask for a retrial.


Correct:


> In sum, because of a failure of proof of literal infringement, we reverse the judgment of infringement of the hardware claims with respect to all of the accused devices. We remand for any further proceedings that may be necessary with respect to those claims.


----------



## HobbyTalk

Greg Bimson said:


> Of course I bring this up. Did anyone bother to read what I responded to? When people simply say, "Why worry about details when your provider tells you that your box will continue to perform it's functions?" Because we've been down this road before. Just because a provider says their customers won't be affected doesn't mean it is true. Alas, this point is proven.


Well duh..... if one side says they are guilty or the other side says you didn't commit a crime, there wouldn't be any legal action. Of course each side will say they are right otherwise there would be no need for legal action if they didn't.

You would expect E* to say, "yes, we infringed but we are gonna fight this in court anyways" or expect TiVo to say, "we know you didn't infringe but are gonna sue you anyways"? Why state the obvious that proves nothing to try and prove a point?


----------



## FogCutter

HobbyTalk said:


> Well duh..... if one side says they are guilty or the other side says you didn't commit a crime, there wouldn't be any legal action. Of course each side will say they are right otherwise there would be no need for legal action if they didn't.
> 
> You would expect E* to say, "yes, we infringed but we are gonna fight this in court anyways" or expect TiVo to say, "we know you didn't infringe but are gonna sue you anyways"? Why state the obvious that proves nothing to try and prove a point?


That's right. Never concede anything. Our legal system punishes frank discussions. By keeping the ball in the air, Dish has a chance to out cost Tivo. Dish has a decent cash flow to keep fighting, Tivo is gasping.


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## Greg Bimson

HobbyTalk said:


> You would expect E* to say, "yes, we infringed but we are gonna fight this in court anyways" or expect TiVo to say, "we know you didn't infringe but are gonna sue you anyways"? Why state the obvious that proves nothing to try and prove a point?


Because there is nothing "obvious" about this. Someone believes because their provider said they won't lose DVR service that there is nothing to worry about. But we've been down the road before with these statements.

Whatever Dish Network, Echostar or any other company release for public consumption doesn't necessarily have to be true.

Just for the extreme sake of the argument...

I release DVR which violates Time Warp patent, software claims only.
TiVo sues me, wins the infringement case, and gets an injunction, stayed during appeal.
Appeals Court rules District Court was correct in application of law, allows injunction to stand.
Case goes back to District Court, where I state I've changed the software so it no longer infringes.

If I were to believe some of the people on this board, here is what happens...

Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

Case goes back to District Court, where I state I've changed the software so it no longer infringes.
Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

Case goes back to District Court, where I state I've changed the software so it no longer infringes.
Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

Case goes back to District Court, where I state I've changed the software so it no longer infringes.
Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

Case goes back to District Court, where I state I've changed the software so it no longer infringes.
Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

Case goes back to District Court, where I state I've changed the software so it no longer infringes.
Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.

I hate to break it to everyone, this case will not be that cyclical.


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## jacmyoung

Greg Bimson said:


> ...I hate to break it to everyone, this case will not be that cyclical.


The problem with what you said is you made up a very weak argument, then falsely tried to blame that your opponents were using this argument, and by attacking such weak argument you attempt to prove your own argument.

It is a typical scraw man fallacy because no one on the other side used such argument.


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## jacmyoung

Herdfan said:


> I may be wrong, but I don't think they were dismissed, but instead remanded back to the District Court to be retried using a different standard. It would be at TiVo's option to ask for a retrial.


Again this particular point had been argued over and over on the other thread. It is very difficult for Tivo to request a summary judgment on the hardware infringement decision because the law gives extremely low standard of proof for DISH to appeal such judgment, and very high standard of proof for Tivo to continue with a summary judgment.

The reason is the jury did not rule on it, and since this is a jury trial, a summary judgment by the judge, without jury's verdict, must meet the highest standard of proof.


----------



## Greg Bimson

Sure. You did, albeit on another thread.

You mentioned, and I am paraphrasing, that when the case gets back to the judge, it is your belief he will defer the software infringement issue to another court and stay the injunction until it gets sorted out.

I've taken it to the extreme on my prior post, because they way some people understand it, the injunction will be stayed until it is proven Dish Network's and Echostar's new software is found infringing. Then what happens? One would expect Dish Network and Echostar then to simply state after their next round of appeals that they have another workaround, and continue the process all over again.

It is far from a weak argument.

The only hope is that somehow Dish Network and Echostar can avoid the injunction. The issue here is that I don't know what process the judge will use to evaluate the new software. And that is very important, because it will open up a can of legal worms anyways, for TiVo to try and shoehorn anything in that they can.


----------



## jacmyoung

Greg Bimson said:


> Sure. You did, albeit on another thread.
> 
> You mentioned, and I am paraphrasing, that when the case gets back to the judge, it is your belief he will defer the software infringement issue to another court and stay the injunction until it gets sorted out.
> 
> I've taken it to the extreme on my prior post, because they way some people understand it, the injunction will be stayed until it is proven Dish Network's and Echostar's new software is found infringing. Then what happens? One would expect Dish Network and Echostar then to simply state after their next round of appeals that they have another workaround, and continue the process all over again.
> 
> It is far from a weak argument.
> 
> The only hope is that somehow Dish Network and Echostar can avoid the injunction. The issue here is that I don't know what process the judge will use to evaluate the new software. And that is very important, because it will open up a can of legal worms anyways, for TiVo to try and shoehorn anything in that they can.


First off quote me don't paraphrase me, secondly even if I had said something close to what you are saying above, it still is not the same as you said one post earlier, not to mention I have not used the same argument in this thread to debate you. The same goes with any weaker argument anyone has used in this thread, when you pick and choose a weaker argument to fight over, rather willing to face the main arguments both James and I have been saying in THIS THREAD, then it is by definition strawman argument.

As an example, I have never said in this thread that the injunction will not be enforced soon, in fact I have said several times there is a good chance the old DVR's on the list may be shut off, even though DISH may still have some chance to appeal, but it will not surprise me if those old DVR's may be turned off.

But if DISH has bought enough time to replace those DVR's with the new DVR's not on the list, and depending on how fast they can do so to limit the impact of the injunction, but if they can do it right, they suffer little disruption. If so then in the end who cares?


----------



## Greg Bimson

I am tired of going over this. Really I am. Post is here:


jacmyoung said:


> So long as we are doing the betting, I think the Judge will likely do (or not do) a few things:
> 
> 1) He would defer a summary judgment on equivalents until a new trial so he can wash his hands on this one, that is if it is clear to him Tivo will pursue this issue regardless the outcome from this trial.
> 2) He would also defer a decision on the merit of the new DISH non-infringing software claim and suggest Tivo pursue this claim as a part of a new trial if Tivo so choose to have another trial.
> 3) He would further defer the decision on any damage claims incurred during the trial for the same reason.
> 4) He would reinstate the current injunction as his final ruling pending additional appeal by DISH.


In a nutshell...

1) no action on the hardware claims, pushed out for a retrial
2) software claims would be rolled into the hardware trial
3) damage claims rolled into new trial
4) reinstate the injunction, but pending appeal on this "new trial"

So, even with a guilty verdict in hand, TiVo will never get any relief because Echostar and Dish Network will gum up the courts by changing their software every time it is found infringing, until it infringes no more.

"Willing to face the main arguments..."

I haven't made any real predictions, other than to say the _en banc_ request would be denied, the upcoming emergency stay at SCOTUS would be denied, and that sparks will fly at Judge Folsom's District Court again when the case is back in his courtroom.

DISH/SATS has been found guilty of infringement on the TiVo Time Warp patent. As of now, it is only the software claims. In order for DISH/SATS to avoid the effects of the injunction, DISH/SATS must prove to Judge Folsom that they no longer infringe. When the case is back at District Court level, if Judge Folsom does nothing the injunction takes effect. Therefore, DISH/SATS must convince Judge Folsom to grant a stay of the injunction again. And the answer isn't going to be, "because, your honor, we no longer infringe," as it will involve proof.

So, without any other "what ifs", someone beat the above bulletproof argument.


----------



## James Long

Greg Bimson said:


> If I were to believe some of the people on this board, here is what happens...
> 
> Injunction gets stayed while another trial or hearing is given to determine whether or not new software infringes.
> Upon finding that new software infringes, case heads back to Court of Appeals for any disputes in law.
> Court of Appeals agrees that verdict is correct and hands case back to District Court for enforcement of the injunction.


I see the copy/paste feature of your browser is working well. 

Here is the twist that you are missing:
Injunction is _issued_ on the software claims.
DISH claims they are using new software and disables zero receivers.
Tivo claims it still infringes and complains to the court that the injunction is being ignored.
--- roll from there, Greg. I don't assume that the injunction will be stayed. I assume that it will be ignored as irrelevant to the current software.

DISH absolutely controls whether or not their DVRs operate (as long as they are connected to the DISH Network system and have received software updates). No amount of paper makes the DVRs stop working ... Tivo and the courts don't control DISH's operations any more than a mother can control a screaming six year old in Wal*Mart. Control only works when one convinces the "controlled party" to give up the fight.

(Don't take it as an insult that I just compared a multi billion dollar corporation to a six year old brat. Being stubborn is the right thing to do when "compliance" hurts the company as much as disabling DVRs would.)

I believe at some point either DISH or Tivo (or both) will relent and there will be a deal that allows DISH DVRs to continue to operate and the court cases to end. One of those "admit no wrong but here's some money if you drop the complaint" kind of deals. (A compromise ... stop screaming and we'll stop at McDonalds on the way out of the store ... keep it up and there will be no McDonalds.)

It is the _hardware_ claims that are more critical in my opinion ... hardware cannot be updated via satellite. Fortunately the hardware claims have been reversed pending further proceedings. Otherwise I believe we would see a deal pretty quickly. (DISH can't easily claim to have changed the hardware.)

So the injunction is issued and DISH claims compliance based on new software. What do the court experts extrapolate the next step to be?


----------



## Greg Bimson

James Long said:


> Here is the twist that you are missing:
> Injunction is issued on the software claims.
> DISH claims they are using new software and disables zero receivers.
> Tivo claims it still infringes and complains to the court that the injunction is being ignored.
> --- roll from there, Greg. I don't assume that the injunction will be stayed. I assume that it will be ignored as irrelevant to the current software.


A voice of reason...

Judge Folsom of the District Court entered the injunction. The Court of Appeals stayed the injunction pending appeal. Once CoA _reaffirmed_ the injunction, they removed the stay and remanded the case back to District Court. This injunction cannot be ignored at District Court. It will not be modifed and will take effect (I believe it is seven) days after the case is back at District Court, if nothing is done.

So DISH/SATS has two options:
1) Somehow get Judge Folsom to stay the injunction, or;
2) find some factual error the moment Judge Folsom make a decision as a basis for an appeal to a higher court.

And there could be point number three, which isn't pretty:
DISH/SATS decides that their software no longer infringes on the patent, so they don't present anything to Judge Folsom. They simply wait for TiVo to press on the matter with the injunction. Because the injunction will stand at the District Court level, we are at the doomsday scenario, because TiVo will simply go back to Judge Folsom and state that DISH/SATS has not complied with the injunction, and are therefore entitled to their relief.

All in all, when the case is remanded back to Judge Folsom, he will have in his possession the injunction he issued, without a stay placed on it. Dish Network MUST do something to convince the judge they are no longer violating the patent in order to have Judge Folsom stop the injunction from taking effect.


----------



## Curtis52

James Long said:


> So the injunction is issued and DISH claims compliance based on new software. What do the court experts extrapolate the next step to be?


It will be easy for TiVo to show that the hard drives have not been disabled in a contempt of court proceeding. I envision triple damages and multimillion dollar daily fines.


----------



## Greg Bimson

And, as is customary in this argument, here is the point I am bringing home:


James Long said:


> Here is the twist that you are missing:
> Injunction is issued on the software claims.


No, the injunction was issued at the remedy phase of the trial, and came through unscathed on appeal.

Therefore, the injunction stands unless DISH/SATS can prove they are no longer infringing on the software claims, and it will have to be done in a timely manner.


----------



## James Long

Greg Bimson said:


> So DISH/SATS has two options:
> 1) Somehow get Judge Folsom to stay the injunction, or;
> 2) find some factual error the moment Judge Folsom make a decision as a basis for an appeal to a higher court.


How about this (from the appeals court ruling):


> In sum, because of a failure of proof of literal infringement, *we reverse the judgment of infringement of the hardware claims* with respect to all of the accused devices. We remand for any further proceedings that may be necessary with respect to those claims.


How can Judge Folsom issue an injunction requiring HARDWARE be shut down when the HARDWARE claim is unresolved?

I believe that Judge Folsom will either (pick one, not all)
1) Need to rewrite the injunction to only apply to the software claims, or
2) Have a bench trial on the hardware issues and issue the injunction, or
3) Have a jury trial on the hardware issues and issue the injunction, or
4) Simply issue the injunction as written.

If he chooses option 1 then DISH disables all receivers using the infringing software (zero) and claims to be in compliance with the injunction.
If he chooses option 2 and if DISH loses the hardware claims we're back at the appeals court (Tivo will appeal if they lose).
If he chooses option 3 there will be a delay for trial and if DISH loses the hardware claims we're back at the appeals court.
If he chooses option 4 then DISH will complain that the injunction is unfair as it was written, in part, based on DISH losing the hardware claims that have been reversed by the appeals court. We're back at the appeals court.

Option 1 is the cleanest ... with additional proceedings to follow to solve the hardware claims.


----------



## Curtis52

James Long said:


> 4) Simply issue the injunction as written.


There is already an injunction. The appeals court blessed it. They didn't change a single word. Nothing needs to be "issued".

"The district court's injunction was stayed during the course of these proceedings. 
The stay that was issued pending appeal will dissolve when this appeal becomes final. 
At that time, the district court can make a determination as to the additional damages, if 
any, that TiVo has sustained while the stay of the permanent injunction has been in 
effect. "


----------



## Greg Bimson

James Long said:


> I believe that Judge Folsom will either (pick one, not all)
> 1) Need to rewrite the injunction to only apply to the software claims, or
> 2) Have a bench trial on the hardware issues and issue the injunction, or
> 3) Have a jury trial on the hardware issues and issue the injunction, or
> 4) Simply issue the injunction as written.


Now we are getting somewhere.


James Long said:


> If he chooses option 1 then DISH disables all receivers using the infringing software (zero) and claims to be in compliance with the injunction.
> If he chooses option 4 then DISH will complain that the injunction is unfair as it was written, in part, based on DISH losing the hardware claims that have been reversed by the appeals court. We're back at the appeals court.


No, we aren't at the Appeals Court on points 1 and 4. The Appeals Court has already let the injunction stand as written. If there were issues about pieces of the claims being thrown out, the Court of Appeals would have reworded the injunction. The Appeals Court has already allowed the injunction to stand, by removing the stay.


James Long said:


> If he chooses option 2 and if DISH loses the hardware claims we're back at the appeals court (Tivo will appeal if they lose).
> If he chooses option 3 there will be a delay for trial and if DISH loses the hardware claims we're back at the appeals court.


Of course.

But that does nothing for the existing injunction, which is only based upon infringement. DISH/SATS will need to argue that they no longer infringe, and that is why I've been saying sparks will fly when this gets back to the District Court.

At least we'll be able to figure out what is going on once the case is back at Judge Folsom's desk.


----------



## jacmyoung

Greg Bimson said:


> ...In a nutshell...
> 
> 1) no action on the hardware claims, pushed out for a retrial
> 2) software claims would be rolled into the hardware trial
> 3) damage claims rolled into new trial
> 4) reinstate the injunction, but pending appeal on this "new trial"
> 
> ...


I hope you first understand that what I said in that thread was a bet and half jokingly bet BTW, and I also said because it was a bet I could close that bet and that was ok.

But even in such context, which you conveniently omitted, you have blatantly mis-stated my points right after you quoted me:

1) I don't think you were necessarily arguing against that bet of mine, are you?
2) I did not say software claims would be rolled into the hardware trial, unless if Tivo insists the hardware issue is resolved by this judge, and if the judge wouldn't do it, Tivo would make it clear to the judge they would request a new trial.
3) The same, if Tivo insists both hardware and software claims are resolved by this judge otherwise Tivo would insist a new trial.
4) Reinstate the injunction, but pending appeal, not in a new trial, rather in the same trial as the current one. Because when it comes to an appeal, it can not be done in a new trial, otherwise it is not called an appeal, rather a new trial. You injected the term "new trial" incorrectly.

So you see, not only did you try to use the strawman fallacy, but by doing so also twisted my words. Now you know why I wanted you to provide the actual quote, not paraphrasing.


----------



## jacmyoung

Greg Bimson said:


> Now we are getting somewhere...
> 
> But that does nothing for the existing injunction, which is only based upon infringement. DISH/SATS will need to argue that they no longer infringe, and that is why I've been saying sparks will fly when this gets back to the District Court...


You are right we are getting somewhere.

Say the injunction is ordered as is, and DISH appeals, citing their claim that the new software no longer infringes. Yes it needs to be done fast, but DISH already has the items in place to submit such an appeal, so it can be done by simply calling the fastest courier they can find and submit it in an hour.

Now how long do you think Judge needs to digest the info DISH submitted to determine if DISH's claim is true or false?

I hope he does not do it in a haste, because as I said earlier, given his clear bias against DISH in this whole matter, as soon as the judge rules against DISH in this new software claim, DISH will have substantial evidence to appeal and argue a fair ruling can only be produced by a new judge or new panel, citing Judge Folsom's past partiality.

In fact it is entirely possible DISH will not even wait for the judge to rule on the new software claim, they will request a new judge to handle this new software claim ruling while appealing the injunction at the same time.


----------



## James Long

Greg Bimson said:


> James Long said:
> 
> 
> 
> I believe that Judge Folsom will either (pick one, not all)
> 1) Need to rewrite the injunction to only apply to the software claims, or
> 2) Have a bench trial on the hardware issues and issue the injunction, or
> 3) Have a jury trial on the hardware issues and issue the injunction, or
> 4) Simply issue the injunction as written.
> 
> 
> 
> 
> 
> 
> James Long said:
> 
> 
> 
> If he chooses option 1 then DISH disables all receivers using the infringing software (zero) and claims to be in compliance with the injunction.
> If he chooses option 4 then DISH will complain that the injunction is unfair as it was written, in part, based on DISH losing the hardware claims that have been reversed by the appeals court. We're back at the appeals court.
> 
> Click to expand...
> 
> No, we aren't at the Appeals Court on points 1 and 4.
Click to expand...

I didn't say we were on option 1. Based on the characterization of Judge Folsom in this thread I don't expect option one to be chosen ... but that's the one where the injunction is _rewritten_ to only apply to the software claims. Such a rewrite would _likely_ end up in court again (either by DISH if the "turn off the hardware" remains or by Tivo if it doesn't). In any case, it would not be the same injunction that the appeals court "approved" and would be open for appeal.

Judge Folsom's more likely action is option four ... give the "approved" injunction despite the fact that it was issued based in part on hardware claims that have been reversed. The safer option would be two or three.



> James Long said:
> 
> 
> 
> If he chooses option 2 and if DISH loses the hardware claims we're back at the appeals court (Tivo will appeal if they lose).
> If he chooses option 3 there will be a delay for trial and if DISH loses the hardware claims we're back at the appeals court.
> 
> 
> 
> But that does nothing for the existing injunction, which is only based upon infringement. DISH/SATS will need to argue that they no longer infringe, and that is why I've been saying sparks will fly when this gets back to the District Court.
Click to expand...

I expect sparks will fly ... but I don't see DISH following the injunction if it is unfair. Unfair being defined as shutting down hardware while the hardware claims are still pending or some expansion of the law that prohibits DISH from ever having a DVR again regardless of if the software infringes.

"We have complied with the injunction and have disabled the hard drive in every receiver that violates the patent. Our current DVRs do not violate the patent."


----------



## Curtis52

jacmyoung said:


> Say the injunction is ordered as is, and DISH appeals,


Ummmm...

It was the appeals court that reinstated the injunction.


----------



## Greg Bimson

James Long said:


> "We have complied with the injunction and have disabled the hard drive in every receiver that violates the patent. Our current DVRs do not violate the patent."


Ah, but that is not what the injunction states. And that is the problem which Dish Network must rectify.


----------



## James Long

So the injunction says they have to disable the hard drive on every DVR on the system _*and*_ can NEVER offer _*any*_ DVR again?

That is the primary difference between the distants issue and this one. That injunction was a "death penalty" with no wiggle room. If you violate that section of USC and an injunction is issued you are 100% out of the distants business forever - even if they agreed to stay within the rules in the future.

This injunction - not so much. There is no law that says "if you create a like product violating someone's patent you may NEVER create a like product even if it doesn't violate the patent". There is no death penalty. DISH is free to develop non infringing products ... and they believe they have done so.

If Tivo doesn't agree they are going to have to file against DISH based on the new products. Just like the TV networks are going to have to file against NPS directly if they feel that NPS is violating the distants injunction against Echostar.

The Tivo injunction does _*not*_ cover every DVR Echostar produces for the life of teh company. Only the infringing ones.


----------



## Curtis52

James Long said:


> So the injunction says they have to disable the hard drive on every DVR on the system _*and*_ can NEVER offer _*any*_ DVR again?


"FINAL JUDGMENT AND PERMANENT INJUNCTION"

"Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."

"Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent. "

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber."


----------



## James Long

Cool ... it only applies to infringing products. Products that don't infringe are fine. 

The argument comes down to if the same hardware with new software is "only colorably different" or if it is a new enough product that it no longer infringes.


----------



## Curtis52

James Long said:


> Cool ... it only applies to infringing products. Products that don't infringe are fine.
> 
> The argument comes down to if the same hardware with new software is "only colorably different" or if it is a new enough product that it no longer infringes.


Specific infringing products are defined in the injunction:

"Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."

Other models have to be determined.


----------



## Kheldar

Curtis52 said:


> Specific infringing products are defined in the injunction:
> 
> "Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."
> 
> Other models have to be determined.


So manufacture the exact same hardware with a different model number printed on the front (call the DP-721 the DP-721a!), and the court will have to re-determine their infringement. That could delay the case for _years_!! :hurah:


----------



## jacmyoung

Curtis52 said:


> Ummmm...
> 
> It was the appeals court that reinstated the injunction.


Keep in mind even Grag has admitted, though very reluctantly, that DISH should have a chance to appeal, because of a new evidence now exists, called DISH's new DVR code.

Such new evidence was never addressed in the current injunction which was upheld by the appeals court. Whether such new evidence has merit or a mere piece of you know what is irrelevant, the new evidence does exist and it is substantially relevant to the injunction at hand.


----------



## jacmyoung

Kheldar said:


> So manufacture the exact same hardware with a different model number printed on the front (call the DP-721 the DP-721a!), and the court will have to re-determine their infringement. That could delay the case for _years_!! :hurah:


Of course this is an extreme case and a sarcastic one too, DISH does not have to re-label them, just replace them with the new VIP models. After all, they are "better than Tivo"


----------



## HobbyTalk

Kheldar said:


> So manufacture the exact same hardware with a different model number printed on the front (call the DP-721 the DP-721a!), and the court will have to re-determine their infringement. That could delay the case for _years_!! :hurah:


No, because they would be no more then colorably different. That is covered in the injunction.


----------



## Curtis52

jacmyoung said:


> Keep in mind even Grag has admitted, though very reluctantly, that DISH should have a chance to appeal, because of a new evidence now exists, called DISH's new DVR code.
> 
> Such new evidence was never addressed in the current injunction which was upheld by the appeals court. Whether such new evidence has merit or a mere piece of you know what is irrelevant, the new evidence does exist and it is substantially relevant to the injunction at hand.


Hey, Dish can put that in their petition to the Supreme Court. LOL

Hmmm ... they didn't even mention it in their appeal. Wonder why? It's because appeals are for arguing whether the lower court judge erred in the application of law.


----------



## James Long

Correct ... any appeals at THIS POINT must deal with errors of law. If DISH brought up any "new evidence" it would be dismissed ... with a reprimand that such evidence should be presented to the lower court.

Once the case becomes active again at Judge Folsom's level that is where DISH can say: "We've complied ... all infringing devices are disabled and our devices now run non-infringing software." When THAT falls on deaf ears it's back up the appeals route saying that Judge Folsom erred in not considering the new information. (Or wait until there is a complaint that takes it that way.)


----------



## Curtis52

James Long said:


> Once the case becomes active again at Judge Folsom's level that is where DISH can say: "We've complied ... all infringing devices are disabled


This is where TiVo can prove they are lying by demonstrating that the models listed as infringing products in the injunction have not been disabled. Book 'em Dano.


----------



## James Long

Those models don't infringe with the new software.

(Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. That should cover the next 100 posts.  )


----------



## Curtis52

Any argument based on "it doesn't matter what the injunction says" won't get anything but a contempt of court citation.


----------



## jacmyoung

Curtis52 said:


> Hey, Dish can put that in their petition to the Supreme Court. LOL
> 
> Hmmm ... they didn't even mention it in their appeal. Wonder why? It's because appeals are for arguing whether the lower court judge erred in the application of law.


Because DISH is not appealing the injunction rather the whole jury verdict. Injecting the new evidence is premature because the jury was never offered such evidence.

The new evidence will be used in the event (and most likely) when the appeal is denied, and the injunction is re-instated. No need to show all your cards, especially such card is irrelavent in the current appeal.


----------



## jacmyoung

Curtis52 said:


> Any argument based on "it doesn't matter what the injunction says" won't get anything but a contempt of court citation.


No that I do not agree with James, DISH will not just sit there and say hey we will not comply, what are you going to do about it? Rather they will appeal with the new evidence introduced that is substantially relavent to the injunction at hand.


----------



## Greg Bimson

jacmyoung said:


> Rather they will appeal with the new evidence introduced that is substantially relavent to the injunction at hand.


In a very roundabout way, *that is exactly what I've been trying to explain for two months.*

I've been saying all along sparks will fly once the case is back at the District Court level. We've been getting these "what if" and "half-baked" scenarios the entire time.


jacmyoung said:


> Keep in mind even Grag has admitted, though very reluctantly, that DISH should have a chance to appeal, because of a new evidence now exists, called DISH's new DVR code.


Reluctantly? Every single time I've said that Dish Network will need to present their new software to Judge Folsom. It is many others that do not share that belief. Many of you finally agreed with me.

*It is only Judge Folsom, or whichever judge that will handle the case, that can do anything with the injunction, which automatically triggers enforcement days after the case is back at the District Court level.* So of course one of the motions DISH/SATS will have to file is a brief that they no longer infringe. The can of worms is therefore opened, and you can believe TiVo will fire back with everything they can.

Remember, there could be some expedited bench trial on the "new software" and its possible infringement. However, if there is an expedited bench trial on the new software, do you think it is possible that TiVo will ask for an expedited, concurrent bench trial on the dismissed hardware claims?

See? That's what I've meant by a can of worms and that sparks will fly. This is seldom seen territory.

And that has been my argument from day ONE.


----------



## jacmyoung

Greg Bimson said:


> ...Remember, there could be some expedited bench trial on the "new software" and its possible infringement. However, if there is an expedited bench trial on the new software, do you think it is possible that TiVo will ask for an expedited, concurrent bench trial on the dismissed hardware claims?
> 
> See? That's what I've meant by a can of worms and that sparks will fly. This is seldom seen territory.
> 
> And that has been my argument from day ONE.


First off, if that is what you have been saying from day one, either you did not say it right, or most everyone else are idiots.

Now you said this new software bench trial must be swift, so then use such of your own opinion as a matter of fact to argue for another swift summary judgment by Tivo is "begging the question", another fallacy in a debate.

What I have said was, this new software bench trial may well be very swift by Judge Folsom, but DISH can certainly appeal citing judge's apparent bias. And DISH should be granted a new judge to rule on it, and that may not be swift.

On the other hand, when Tivo asks for a summary judgment by Judge Folsom on the hardware infringement issue, as Curtis52 had quoted the language of the law, we learned that such attempt must meet the highest standard of proof, whereas DISH's appeal on such summary judgment doesn't have to meet much standard at all, as long as there is evidence to justify an appeal, and the evidence does not even have to be substantial. Because again this is a jury trial, and the jury did not produce a verdict on the hardware issue or the one they did was dismissed.

And DISH's evidence on appeal of such adverse summary judgment is in fact very substantial, because the same appeals court had already said they could not uphold such hardware verdict EVEN IF the evidence was substantial to render such verdict in favor of Tivo. So a new jury trial is almost certain if Tivo wants to continue on this hardware issue.


----------



## Greg Bimson

jacmyoung said:


> First off, if that is what you have been saying from day one, either you did not say it right, or most everyone else are idiots.


Okay...


Greg Bimson said:


> Now, more than likely, the judge will get motions from TiVo asking that any newer DVR's not part of the original suit are added to the list, and TiVo may ask again that damages be trebled for willful infringement. The second part is key because if Dish Network released a newer DVR since the jury rendered the verdict, the continuing use of the software in newer products could be considered willful infringement.
> 
> I fully suspect DISH and SATS to license the TiVo software, within 30 days, unless some other magical appeal shows up.





Greg Bimson said:


> TiVo gets to go back to the court and ask for more money, specifically the amount since August 2006. Dish Network will then counter with the fact they have new software, so the cut-off should be at this point.
> 
> Then the judge must decide whether or not the new software infringes.
> 
> Just because Dish Network says the software doesn't infringe doesn't mean it doesn't infringe.





Greg Bimson said:


> But this assumes a couple of points where the factors are yet to be known...
> 
> Did Dish Network in fact create software that no longer infringes on the Time Warp patent? If not, TiVo will get their licensing agreement by hook or by crook, since Dish Network will not want to disable their DVR's. If Dish Network did work around the patent, then the licensing agreement is moot.
> 
> Because of the fact it is impossible to change the hardware configurations of the DVR's Dish Network has already sold, it is possible TiVo goes back after infringement on the hardware claims of the patent. It would make the infringement judgement iron-clad if TiVo can win this point. I suspect we'll see some wrangling over the next couple of months by TiVo on this issue.
> 
> We do know that TiVo believes any change to the Echostar DVR software will still infringe on the Time Warp patent. So expect TiVo to go after Dish Network on this point. We do know that the hardware claims will still need some validation, so I'd think TiVo will also work on that as well.
> 
> Dish Network will do what it can to delay the proceedings some more. So expect them to request the Court of Appeals to rehear the case en banc (have the entire bench of the Court of Appeals rule on the case), and from there would go to the Supreme Court. Once those appeals run dry (most likely), they will go in front of the District Court judge and try to convince him that the software they now use does not employ TiVo's patented technology, and they will also do whatever it takes to keep the hardware claims from being reconsidered.


So, anyone want to tell me which part of the story I've changed?

I mean, a few people have all of a sudden come to the conculsion after all these months that in order to avoid the injunction, DISH/SATS will have to convince the District Court Judge they no longer infringe, so that the injunction is revoked. And the argument from me is no different than it was when I started in in early February.


----------



## jacmyoung

Greg Bimson said:


> Okay...So, anyone want to tell me which part of the story I've changed?
> 
> I mean, a few people have all of a sudden come to the conculsion after all these months that in order to avoid the injunction, DISH/SATS will have to convince the District Court Judge they no longer infringe, so that the injunction is revoked. And the argument from me is no different than it was when I started in in early February.


But why are you arguing with those few people when you should have been responding to my points? Are they arguing with you now? Or because they are easy prey--strawmen?


----------



## Greg Bimson

Responding to your points? They're circular. Here. I'll make this one easy:


Greg Bimson said:


> So it always gets back to this:
> 
> Echostar/Dish Network has two appeals left before the case heads back to the same court that found them guilty of patent infringement: an en banc request for the entire jurist panel of the Court of Appeals, and a writ of certiorari to appeal to the Supreme Court. I am no lawyer, but I also believe it would be extremely difficult for either court to accept a request.
> 
> TiVo can only wait until they get back to the District Court, back in front of the same judge that issued the injunction. We know that TiVo will:
> 
> 1) try to claim that the "new software" still infringes on the Time Warp patent
> 2) try to claim that the entire VIP series infringes on the Time Warp patent
> 3) could try to claim that if the VIP series infringes on the Time Warp patent, that Echostar is still willfully infringing, and therefore be subject to trebled damages
> 4) if any or all of the above fail, TiVo will probably also try to get summary judgment for the hardware claims that the Court of Appeals struck down
> 
> We also know that Echostar/Dish Network will try to somehow convince the court they aren't using the Time Warp patent anymore. Because if they are still using the Time Warp patent, the injunction will trump anything and force Echostar/Dish Network to license the TiVo software. There even may be a grey area where it won't matter if Echostar/Dish Network is using the Time Warp patent; there is the possibility the judge will not want to hear it and force Dish Network to come to an agreement with TiVo by imposing the injunction without regard to the Echostar/Dish Network claims of a software rewrite.
> 
> That should have all of the bases covered.


Nothing is any different than I wrote earlier, and this was on 16 February.


----------



## Curtis52

jacmyoung said:


> No that I do not agree with James, DISH will not just sit there and say hey we will not comply, what are you going to do about it? Rather they will appeal with the new evidence introduced that is substantially relavent to the injunction at hand.


Here is how the contempt of court hearing might go:

Judge: Have you complied with the permanent injunction?

Dish: Yes your honor.

Judge: Did you disable the models listed in the permanent injunction as infringing products?

Dish: No your honor.

Judge: Why not?

Dish: We have decided that it doesn't matter what the permanent injunction says. We think the permanent injunction should be changed.

Judge: You are in contempt. There will be a $40 million fine per day until you comply and treble damages will be awraded to the plaintiff.

It would be a 5 minute hearing.

_________

According to your logic, Dish needs to tell the Supreme Court that the lower courts erred in not making the injunction a temporary injunction that requires a DVR shutdown until Dish fixes the problem instead of a permanent injunction. They didn't make that argument to the appeals court though. The appeals court blessed a permanent injunction.


----------



## Greg Bimson

And truth be told, I may be getting a few terms mixed up. I would believe that in order to stop the injunction from taking effect, DISH/SATS will request an emergency hearing to determine if the new software no longer infringes. It will not be a "bench trial", or anything of the sort. It will be a hearing, where the judge must rule on whether or not the new software is infringing.

Which brings me back to the grey area. It is possible that the judge will then spin-off a fact finding of infringement on the new software while also enforcing the injunction on the old software. And that can be appealed, like jacmyoung states. However, with a guilty verdict in hand, sustained by the Court of Appeals, it is possible anything can happen. I cannot make a bet or a call on that.


----------



## Curtis52

Greg Bimson said:


> And truth be told, I may be getting a few terms mixed up. I would believe that in order to stop the injunction from taking effect, DISH/SATS will request an emergency hearing to determine if the new software no longer infringes. It will not be a "bench trial", or anything of the sort. It will be a hearing, where the judge must rule on whether or not the new software is infringing.


It took a jury trial, an appeal, and four years time for TiVo to prove infringement. I wonder why it wasn't just a hearing?


----------



## jacmyoung

Curtis52 said:


> ...Dish: We have decided that it doesn't matter what the permanent injunction says. We think the permanent injunction should be changed.
> 
> Judge: You are in contempt. There will be a $40 million fine per day until you comply and treble damages will be awraded to the plaintiff.
> 
> It would be a 5 minute hearing.
> 
> _________
> 
> According to your logic, Dish needs to tell the Supreme Court that the lower courts erred in not making the injunction a temporary injunction that requires a DVR shutdown until Dish fixes the problem instead of a permanent injunction. They didn't make that argument to the appeals court though. The appeals court blessed a permanent injunction.


You first part is also called strawman's argument, in that you throw out a very weak argument by DISH, then attack it. No DISH will not say the injunction does not matter, they will say our DVR's no longer infringe, and we have evidence to prove it your honor.

As for your last part, I don't know if anyone even mentioned DISH is arguing for a temporary injunction, they are appealing the whole jury verdict right now. One step at a time, why even get ahead of yourself?

BTW by reading the two posts above between you two, either you were arguing between yourselves, or you are agreeing with me, I could be wrong


----------



## Greg Bimson

jacmyoung said:


> You first part is also called strawman's argument, in that you throw out a very weak argument by DISH, then attack it. No DISH will not say the injunction does not matter, they will say our DVR's no longer infringe, and we have evidence to prove it your honor.


I am having one of those "OH CRAP" moments. The last one I remembered so vividly was when I realized the settlement in the distant network suit would not cause the injunction to disappear...

The Court of Appeals wrote, "The district court's injunction was stayed during the course of these proceedings. The stay that was issued pending appeal will dissolve when this appeal becomes final. At that time, the district court can make a determination as to the additional damages, if any, that TiVo has sustained while the stay of the permanent injunction has been in effect."

I now completely agree with Curtis, provided there is no other grace period on the injunction other than, "when this appeal becomes final." That is, the stay on the injunction dissolves and the case heads back to District Court.

What is the first issue when the District Court opens for business? Well, with enforcable injunction in hand, TiVo can claim that Dish Network has failed to comply with the terms of the injunction. That will start the contempt proceedings, and from there it will be expected that DISH shut off their DVR's while trying to prove their new software no longer violates the patent.

I'm not trying to sound crazy on this point, but someone please prove me wrong. If the injunction is enforcable before this case gets back into District Court, this is already over. Sure, there will be a fight, but the fact remains an injunction will be in place and DISH/SATS will be taking a big risk by not complying with the order even if they believe their software doesn't infringe.


----------



## Curtis52

Greg Bimson said:


> I'm not trying to sound crazy on this point, but someone please prove me wrong. If the injunction is enforcable before this case gets back into District Court, this is already over.


The appeals court will issue their mandate 7 days after they deny Dish's request for a stay pending certiari unless the Supreme Court provides a stay during those 7 days. The instant the appeals court mandate is issued, the injunction is in force. Dish has about 2 weeks from today before the injunction resumes.


----------



## Greg Bimson

Okay. So now I have this straight. What WILL happen:

The case heads back to District Court. If DISH/SATS has not turned off the infringing DVR's, TiVo will initiate a contempt proceeding to have DISH/SATS follow the injunction. That is where DISH/SATS can argue whether or not the the new software is infringement-free. TiVo will most likely argue that "or colorably different" applies to all DVR's released since the beginning of the lawsuit.

And this contempt proceeding will not be long at all. It may last a day or two, with expert testimony only. It may even take a week or two for a ruling. Yes, if it doesn't go DISH/SATS way, they'll appeal it.

But now let's get this one out in the open immediately: if the contempt proceeding gets to the Court of Appeals and DISH/SATS loses, it will cost them a heck of a lot more than $150 million. What kind of licensing deal can you strike if federal marshals are at your front door three minutes from turning off your equipment?


----------



## jacmyoung

Curtis52 said:


> The appeals court will issue their mandate 7 days after they deny Dish's request for a stay pending certiari unless the Supreme Court provides a stay during those 7 days. The instant the appeals court mandate is issued, the injunction is in force. Dish has about 2 weeks from today before the injunction resumes.


Assume you are correct, during that seven days, it would be for DISH to convince the appeals court, or the Supreme Court, why the injunction should be stayed, and the main argument we would probably all agree they will have to produce evidence that the new software no longer infringes.

And as I have said, that is probably not enough, and it will not surprise me if DISH indeed has to shut off the old DVR's. The question then becomes what the impact will that be and whether DISH has bought enough time to replace those DVR's.

My contention has always been that it would not be in Tivo's best interest to go that route, their best solution is for DISH to agree to sign on to their license deal so Tivo can enjoy a long term gain. But if it becomes clear to Tivo that Charlie has absolutely no intention to do that, then yes Tivo will have to go this route.

The flip side is, just like the DNS case, if Charlie refuses to negotiate with Tivo, there must a good reason for that, either he figured when the time comes, they will be able to replace the DVR's or do somethings else in combination to it to minimize the impact of the injunction, much the same when they decided not to fight on in that DNS case, because in the end when they looked at how many DNS subs they might lose, vs. the 70 million they would otherwise have to pay even if the settlement was to take place, they probably figured out it was not worth the trouble.

My point is, some of you like to think Charlie operates by his stubbornness, the evidence pointed to the contrary, that he indeed plays his cards, and know when to fold. If he is still not willing to fold, it is likely he does have some cards in his hands. If he realizes he has no card, then he will fold, in this case it may mean he will reach out to Tivo to seek an agreement, which as I said is also in the best interest for Tivo, so such outcome is definitely not out of the question. That is if Charlie can be convinced he has no more cards to play.

Please keep in mind one of the cards can be, as I stated, that they figure out they can minimize the impact of the injunction and come out fine. If this is the case then there is absolutely no reason at all not to fight all the way to delay the inevitable as much as they can.


----------



## Curtis52

Greg Bimson said:


> Okay. So now I have this straight. What WILL happen:TiVo will most likely argue that "or colorably different" applies to all DVR's released since the beginning of the lawsuit.


TiVo will most likely argue that Dish wants to rewrite the injunction long after the case is already over.


----------



## Curtis52

TiVo will probably ask for (and get) a preliminary injunction on the newer models shortly after the appeal is final.

35 U.S.C. 295Presumption: Product made by pat- 
ented process. 
In actions alleging infringement of a process patent 
based on the importation, sale, offered for sale, or use 
of a product which is made from a process patented in 
the United States, if the court finds— 
(1) that a substantial likelihood exists that the 
product was made by the patented process, and 
(2) that the plaintiff has made a reasonable 
effort to determine the process actually used in the 
production of the product and was unable so to deter- 
mine, the product shall be presumed to have been so 
made, and the burden of establishing that the product 
was not made by the process shall be on the party 
asserting that it was not so made. 
(Added Aug. 23, 1988, Public Law 100-418, sec. 
9005(a), 102 Stat. 1566; amended Dec. 8, 1994, Public Law 
103-465, sec. 533(b)(7), 108 Stat. 4990.)


----------



## Kheldar

Curtis52 said:


> TiVo will probably ask for (and get) a preliminary injunction on the newer models shortly after the appeal is final.


http://www.ibtimes.com/articles/20080411/dish-tivo.htm:


> Dish said in January it had changed its services and that it was no longer infringing the TiVo patent.
> ...
> Under the U.S. patent law, TiVo, the pioneer of DVRs that let TV viewers skip commercials, has a right to ask the trial judge in Marshal, Texas, to rule that the current version of Dish's DVR service also infringes the patent.


----------



## Greg Bimson

jacmyoung said:


> Assume you are correct, during that seven days, it would be for DISH to convince the appeals court, or the Supreme Court, why the injunction should be stayed, and the main argument we would probably all agree they will have to produce evidence that the new software no longer infringes.


The only place to gather evidence that the new software no longer infringes is back at District Court, once TiVo files a contempt proceeding because DISH/SATS is not following the injunction. It goes straight to the fact that an injunction to shut-off all offending DVR's will be in force by the time the case is back at the District Court.


jacmyoung said:


> My contention has always been that it would not be in Tivo's best interest to go that route, their best solution is for DISH to agree to sign on to their license deal so Tivo can enjoy a long term gain. But if it becomes clear to Tivo that Charlie has absolutely no intention to do that, then yes Tivo will have to go this route.
> 
> The flip side is, just like the DNS case, if Charlie refuses to negotiate with Tivo, there must a good reason for that, either he figured when the time comes, they will be able to replace the DVR's or do somethings else in combination to it to minimize the impact of the injunction, much the same when they decided not to fight on in that DNS case, because in the end when they looked at how many DNS subs they might lose, vs. the 70 million they would otherwise have to pay even if the settlement was to take place, they probably figured out it was not worth the trouble.


I'd love to say I agree with you on this one. However, "Charlie" mentioned when faced with the immediate prospect of cutting off the distant feeds, that they made a mistake pushing their stance too far. Mr. Ergen realized at that time that he put his customers at risk.

The problem here is this is now somewhat like the distants case. Instead of finally trying to settle after a mandated permanent injunction was to be issued by the District Court in the distants case, there will be a permanent injunction in place that requires DISH/SATS to make all offending DVR's stop working. This will be rather quick, and any appeal probably won't take longer than three months.

Think about this in reverse for just a second. Normally, in any case regarding some kind of infringement, the District Court judge issues an injunction, then immediately issues a stay of that injunction pending appeals. Once the appeals are complete, the District Court judge then receives the remanded case back for any cleanup that may occur. It would be at that point when the stay of the injunction is removed, so that the injunction takes full effect.

In this case, the District Court judge did not issue a stay of the injunction pending appeal. The Court of Appeals had to issue the stay while reviewing the facts. When then were finished, they let the injunction stand as written and removed the stay, so the injunction is in effect when the case is back in District Court.

That truly puts the onus of proof squarely on the shoulders of DISH/SATS' lawyers, to fix these problems during a contempt proceeding. And considering their track record as of late, I'm pretty sure that is not a good thing.


----------



## jacmyoung

Greg Bimson said:


> ... However, "Charlie" mentioned when faced with the immediate prospect of cutting off the distant feeds, that they made a mistake pushing their stance too far. Mr. Ergen realized at that time that he put his customers at risk...


First what is the significance of the quotation marks on Charlie?

Then why has he not learned the lesson? Could it be that he does have some cards in his sleeve this time?

You are pretty much betting on Charlie being a nut case for realizing his recent mistake then continue on the same wrong course. Not that it is impossible, but is this how you usually place your bet?

Of course he would say to his stockholders yeah we lost, my bad but since I recognize it you can be assured we will handle it better next time.


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## jacmyoung

How about this scenario. In a few months all DISH's DVR's on that list get shut off, and DISH pays all the fines.

DISH is currently actively working on their all-MPEG4 plans and has already started such service for the new subs with a new dish and receivers. I can see in the next few months they send out notifications to all affected DVR users that DISH value your business, so much so that we are going to upgrade you with all new hardware for free, including a new dish, all for free so you can enjoy the most advanced HDDVR technology in the world.

What is wrong with that? Before you say no they are not capable of doing such thing, let me remind everyone that during the peak sub addition period DISH was adding close to a million new subs in a few months, they can definately do it, it will cost them for sure but they can do it. Their goal is to convert all the subs to MPEG4-only, so why not make those DVR subs the first to be converted?


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## Curtis52

jacmyoung said:


> I can see in the next few months they send out notifications to all affected DVR users that DISH value your business, so much so that we are going to upgrade you with all new hardware for free, including a new dish, all for free so you can enjoy the most advanced HDDVR technology in the world.
> 
> What is wrong with that?


The ex-customers will be under multi-year contracts with competing companies. The new DVRs will be under preliminary injunctions and will likely ultimately be found to infringe.


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## Doggfather

Tivo is a horrible little company with a crap product who can't accept that it is crap and is accordingly going after those who had success with an idea that they can't successfully patent. I tell you whats the point in this company even doing this ;0 They haven't been granted on going royalties on all DVR's out there (Dish, Cable, DirecTV, PC's etc) so the inevitble chapter 11 cant be far arround the corner for them! Why not face it and find a new avenue of business to expand into. Who would buy a seperate device for DVR these days when you can get one built in to any and all TV provider boxes!!! Die Tivo Die ;0 You shall not be missed! Click beep Boop BANG!


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## James Long

Greg Bimson said:


> The problem here is this is now somewhat like the distants case.


Somewhat, but the injunction REQUIRED BY LAW in the distants case was REQUIRED BY LAW to permanently ban Echostar from ever offering distants ever again. It was not an injunction requiring E* to stop illegally offering distants (by tighening up their authorization procedures - that was tried and E* ignored it). The injunction REQUIRED BY LAW was a death penalty. E*, now DISH , cannot ever offer distants even if they followed the authorization rules to the letter of the law.

No such rule of law exists for this injunction. DISH/E* is free to develop and sell non-infringing DVRs and remain in the marketplace.

This is the BIG difference between the two cases ... what is actually required by law to happen. A settlement or license arrangement now is possible because there is no death penalty. Introducing infringement free DVRs is also possible. There is no death penalty.


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## Greg Bimson

James Long said:


> This is the BIG difference between the two cases ... what is actually required by law to happen. A settlement or license arrangement now is possible because there is no death penalty. Introducing infringement free DVRs is also possible. There is no death penalty.


I always get caught up in the semantics. That of course is 100 percent true.

The difference however, is what happens if or when all appeals and ajudications are finished, and DISH/SATS is at the short end? TiVo will hold all the cards. And technically, we aren't too far from that point, unless DISH/SATS completes the hail mary at either SCOTUS or the contempt proceeding.


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## Kheldar

Greg Bimson said:


> I always get caught up in the semantics. That of course is 100 percent true.
> 
> The difference however, is what happens if or when all appeals and ajudications are finished, and DISH/SATS is at the short end? TiVo will hold all the cards.


Correct. But, TiVo doesn't _want_ E* to lose the DVR service. 
TiVo _wants_:
* a licensing agreement with E*,
* money for past violation,
* money, money, money from E*.

The injunction, although it is the equivalent of a royal flush in poker, is just a means to an end. Holding the royal flush doesn't help a poker player if the player folds his hand.

If the injunction is granted, they can then threaten E* with the loss of their DVR service, and the associated mass exodus of DVR-loving customers, and they can force E* to the negotiating table. That, and with the injunction in hand, TiVo could more-than-likely get a _lot more_ money out of E*.

Granting the injunction, however, doesn't mean the immediate shutdown of E*'s DVR service, does it? TiVo could hold the injunction over their heads, saying "as long as you negotiate in good faith, we won't force you to disable your DVR service. However, if you walk away from the negotiating table, say goodbye to your DVR service and DVR-loving customers!", with an evil laugh to follow.

That and, with an injunction in hand against E*, they would be able to pressure the cable companies into similar negotiations.


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## Greg Bimson

Kheldar said:


> The injunction, although it is the equivalent of a royal flush in poker, is just a means to an end. Holding the royal flush doesn't help a poker player if the player folds his hand.


Kheldar, I think you missed one important point...

The moment that the case is back on the docket in the District Court, TiVo will have to file a contempt proceeding, because the injunction is already in force.

So let's say this contempt proceeding goes to appeals and DISH/SATS is able to continue to violate the injunction. What happens if the Court of Appeals gives a favorable ruling to TiVo? Does DISH/SATS simply throw up their hands and say, "my bad"?

I believe this to be the point Curtis has been trying to make. The injunction will be live and like an 800-pound gorilla by the time the case is back at District Court. If DISH/SATS does not comply with the injunction, all bets are off as to how bad this could get if they lose.


----------



## Greg Bimson

Kheldar said:


> Granting the injunction, however, doesn't mean the immediate shutdown of E*'s DVR service, does it? TiVo could hold the injunction over their heads, saying "as long as you negotiate in good faith, we won't force you to disable your DVR service. However, if you walk away from the negotiating table, say goodbye to your DVR service and DVR-loving customers!", with an evil laugh to follow.


Well, the injunction should go live very soon. So if DISH/SATS believes very strongly that their new software does not infringe, they can decide not to adhere to the injunction, and wait for TiVo to take them to court in a contempt proceeding.

The reminder is that the injunction is already issued, and no one is required to sign-off in order to make the injunction active. It is like a timed-release cold-capsule; the injunction will simply take effect on a given date, once the Court of Appeals remands the case back to the District Court. No human intervention required.


----------



## jacmyoung

Curtis52 said:


> ... The new DVRs will be under preliminary injunctions and will likely ultimately be found to infringe.


Now I hope you did not state this as a matter of fact?

If somehow Judge Folsom decides to include all the new DVR's in the injunction, that is when DISH can certainly appeal to ask for a stay of the injunction citing the fact the hardware claim was dismissed, and since the new softeware no longer infringes, to include the new DVR's will be improper, and likely the whole injunction will be in question, probably a new jury trial will have to happen to work out the hardware claim and software claim together before this is over.

It would be foolish for Tivo to request that Judge Folsom to include all new DVR's in the injunction, it can further delay the injunction itself.

Tivo can of course ask for a new trial to work on the hardware claim again, and this time include all new DISH DVR's, but it will be another lengthy trial and the chance of success will be less because in a few years all DISH hardware will be new MPEG4 boxes, I am sure they can figure out ways to avoid both hardware and software infringement with the new design.


----------



## Curtis52

jacmyoung said:


> Now I hope you did not state this as a matter of fact?
> 
> If somehow Judge Folsom decides to include all the new DVR's in the injunction, that is when DISH can certainly appeal to ask for a stay of the injunction citing the fact the hardware claim was dismissed, and since the new softeware no longer infringes, to include the new DVR's will be improper, and likely the whole injunction will be put in question, probably a new jury trial will have to happen to work out the hardware claim and software claim together before this is over.
> 
> It would be foolish for Tivo to request that Judge Folsom to include all new DVR's in the injunction, it can further delay the injunction itself.


It would be a new injunction. A preliminary injunction only on the new DVRs based on the likelihood that the new DVRs also infringe given Dish's history of infringing despite statements that they didn't infringe. The new DVRs would be blacked out until Dish can prove they don't infringe. None of this would have any impact on the existing permanent injunction and the blacked out old DVRs.


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## jacmyoung

Curtis52 said:


> It would be a new injunction. A preliminary injunction only on the new DVRs based on the likelihood that the new DVRs also infringe given Dish's history of infringing despite statements that they didn't infringe. The new DVRs would be blacked out until Dish can prove they don't infringe. None of this would have any impact on the existing permanent injunction and the blacked out old DVRs.


Honestly how likely do you think Judge Folsom would go to such length, and if he does, what is the chance of such prelimilary injunction may withstand an appeal? Given that the hardware case is dismissed?


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## Curtis52

Preliminary injunction (wikipedia)

A preliminary injunction, in equity, is an injunction entered by a court prior to a determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct until the case has been decided. If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.

In most courts in the United States, the party seeking the preliminary injunction must demonstrate all four things together:

1. That there is a substantial likelihood of success on the merits of the case,
2. That they face a substantial threat of irreparable damage or injury if the injunction is not granted,
3. That the balance of harms weighs in favor of the party seeking the preliminary injunction
4. That the grant of an injunction would not disserve the public interest.

The "balance of harms" refers to the threatened injury to the party seeking the preliminary injunction as compared to the harm that the other party may suffer from the injunction."
_______________
Judge Folsom addressed each of these points in his decision to deny a stay during appeal. If he bothers to provide reasons when he approves TiVo's request for a preliminary injunction on the new DVRs he can pretty much cut and paste them.


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## Curtis52

jacmyoung said:


> Honestly how likely do you think Judge Folsom would go to such length, and if he does, what is the chance of such prelimilary injunction may withstand an appeal? Given that the hardware case is dismissed?


Judge Folsom was judged correct in his denial of a stay on the permanent injunction. He said Dish might win on some points but not all points. Some points were remanded. TiVo won the rest. The permanent injunction is being reinstated as written. He was right.


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## jacmyoung

Curtis52 said:


> Judge Folsom was judged correct in his denial of a stay on the permanent injunction. He said Dish might win on some points but not all points. Some points were remanded. TiVo won the rest. The permanent injunction is being reinstated as written. He was right.


You did not answer my question though.

Keep that in mind when you answer my question, that the hardware infringement was dismissed, and DISH is claiming the new software no longer infringes.

And BTW, if I read your definition of a preliminary injunction right, it should occur prior to a trial not at the end of a trial? Maybe you meant during a new trial?


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## Curtis52

At this point, A statement from Dish that they don't infringe is an almost sure sign that they do.


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## jacmyoung

Curtis52 said:


> At this point, A statement from Dish that they don't infringe is an almost sure sign that they do.


Why do you continue to avoid my question?


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## Lincoln6Echo

FogCutter said:


> The announcement basically changes the subject. The new software will have to be studied to determine if it really doesn't infringe on Tivo's patents. That will take time and possibly a new filing.
> 
> Tivo loses the ability to force dish to shut things down for a while, but they can still press for damages such as lost sales and revenue. Stuff like that.
> 
> Dish can buy a lot of time with this, but still faces paying damages for loss of revenue (and anything else Tivo can come up with) caused by the infringing software.
> 
> Curtis52's post reads "storage and playback from a hard disk of television data". If that is the language of the patent and is held as valid, then this isn't a software issue at all. Seems overly broad to me, but some patents are really encompassing.
> 
> Tivo was one of the early champions of DVRs and they are slowly going broke. Everyone loved their idea so much they copied it and are underselling them all over the place. I think in the end Tivo will collapse. Win the court case, lose the war.


All I wanna know is where is the process of competition in the free market place?

If TiVo is going broke, make a better product. Simple as that. Don't ***** and whine when other companies make a better product than you.


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## Kheldar

Lincoln6Echo said:


> If TiVo is going broke, make a better product. Simple as that. Don't ***** and whine when other companies make a better product than you.


That's true, but if the competition uses a technology _that is rightfully and legally yours as granted by a government-issued patent_, that is not fair competition.


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## BNUMM

Do not think that all DVR lovers will drop Dish. They have another option. Buy a Tivo and connect it to the output of a DishNetwork receiver.


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## Kheldar

BNUMM said:


> Do not think that all DVR lovers will drop Dish. They have another option. Buy a Tivo and connect it to the output of a DishNetwork receiver.


Maybe a portion would agree to $13.95/mo for TiVo + upfront equipment costs, but both cable and D* offer cheaper systems that aren't so much of a kludge. Connecting a stand-alone TiVo to an E* receiver would only get you single-tuner capability. Granted, though, people that can't live without E* may select this option.


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## BNUMM

I don't disagree. I was just pointing out an option for people who would never switch.


----------



## kog

This is my best guess at what will happen after the SCOTUS rejects Dish's appeal:

The case will go back to District Court in Texas. Once there Tivo will ask the judge to enforce the current injunction. Dish will argue that they have changed the software and that the injunction is no longer needed. The judge will start a new hearing on whether or not new software infringes or not. Tivo will ask the judge to issue a summary judgment that the new software still infringes and that the original injunction goes into force.

And at this point is where the sparks fly. The judge could grant Tivo's their summary judgment but Dish will surely appeal. If he doesn't then he has to decide if he wants to keep the injunction in force during this trial, if he does then Dish will appeal that decision. If Dish loses out on this second round of trials and appeals then they will have no choice but to settle or turn their DVR's off. Because I doubt any judge will want to go through a 3rd round of "We've changed the software and are no longer infringing" dance.

How long will this whole process take? Your guess is as good as mine, but I would expect it to be on the order of "months" instead of "weeks".


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## gully_foyle

Lincoln6Echo said:


> All I wanna know is where is the process of competition in the free market place?
> 
> If TiVo is going broke, make a better product. Simple as that. Don't ***** and whine when other companies make a better product than you.


It isn't fair competition when another company spent millions of dollars to develop a successful product and the other company just steals the design and "competes" with them.

After they get caught, saying "well, we changed it" doesn't get them off the hook for past damages either. Or interest. Or the presumption that they're still thieves and liars and all that.


----------



## gully_foyle

kog said:


> This is my best guess at what will happen after the SCOTUS rejects Dish's appeal:
> 
> The case will go back to District Court in Texas. Once there Tivo will ask the judge to enforce the current injunction. Dish will argue that they have changed the software and that the injunction is no longer needed. The judge will start a new hearing on whether or not new software infringes or not. Tivo will ask the judge to issue a summary judgment that the new software still infringes and that the original injunction goes into force.
> 
> And at this point is where the sparks fly. The judge could grant Tivo's their summary judgment but Dish will surely appeal. If he doesn't then he has to decide if he wants to keep the injunction in force during this trial, if he does then Dish will appeal that decision. If Dish loses out on this second round of trials and appeals then they will have no choice but to settle or turn their DVR's off. Because I doubt any judge will want to go through a 3rd round of "We've changed the software and are no longer infringing" dance.
> 
> How long will this whole process take? Your guess is as good as mine, but I would expect it to be on the order of "months" instead of "weeks".


Hell, it won't last that long. The injunction is going to go in force almost immediately -- the burden of proof that the software doesn't infringe is on Dish, not TiVo. I'd be surprised it they get away without paying PDQ as well.


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## gully_foyle

Kheldar said:


> Maybe a portion would agree to $13.95/mo for TiVo + upfront equipment costs, but both cable and D* offer cheaper systems that aren't so much of a kludge. Connecting a stand-alone TiVo to an E* receiver would only get you single-tuner capability. Granted, though, people that can't live without E* may select this option.


Same folks who refuse to switch to blu-ray.


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## jacmyoung

kcmurphy88 said:


> Hell, it won't last that long. The injunction is going to go in force almost immediately -- the burden of proof that the software doesn't infringe is on Dish, not TiVo. I'd be surprised it they get away without paying PDQ as well.


I am a little confused everytime someone says the burden of proof is on DISH, what does that mean? That no matter what proof DISH offers judge will deny it?

Surely no one is disputing that DISH WILL offer proof, only that some of you think any proof by DISH will be a lie because they lied before. But I hope the judge does not use the same standard when determining whether the new DISH claim is valid or not.

So the question still is, when DISH produces that proof, what happens then? Would the judge simply ignore it, or would the judge look at it? If he is going to look at it, how much time does he usually need? Will he need to consult experts? If so from which party? Only the Tivo experts, only the DISH experts or both? Or will he just pick out his own experts? Is he expert enough to determine on his own?

Certainly more than a few days I think, because when I was reading that DISH patent application, I dozed off a few times and had to come back to finish the reading next day. And I had no chance nor means to even look at how such claim may be implemented in a DVR. It does not seem to me a few days or even a few weeks would be sufficient.

Not to mention again if the judge is to found DISH's new claim not valid, DISH surely has a valid claim that the same judge may not produce a fair judgment on this new claim because his apparent bias against DISH during the trial.


----------



## Curtis52

kcmurphy88 said:


> Hell, it won't last that long. The injunction is going to go in force almost immediately -- the burden of proof that the software doesn't infringe is on Dish, not TiVo.


As far as the models listed in the injunction go, it doesn't matter one way or the other. It's over. It was called Final Judgment and Permanent Injunction. As in final and permanent.


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## Greg Bimson

jacmyoung, I looked at the link a while ago regarding the SATS patent application. I remember vaguely looking at it, but not reading too much because I didn't see the patent claims. Were the patent claims there as well?


jacmyoung said:


> I am a little confused everytime someone says the burden of proof is on DISH, what does that mean? That no matter what proof DISH offers judge will deny it?
> 
> Surely no one is disputing that DISH WILL offer proof, only that some of you think any proof by DISH will be a lie because they lied before. But I hope the judge does not use the same standard when determining whether the new DISH claim is valid or not.


I have a feeling since SATS let the cat out of the bag by stating their new software does not infringe, that TiVo has already reverse-engineered the box to determine the scope of possible infringement.

My only theory is that of the software claims found infringing, it would be darn near impossible to change the software to make it non-infringing. Not to say it couldn't be done, but take a look at how long it took for SATS to release code to make the DISH DVR's stable. Now we are to believe a massive rewrite of the code has been downloaded and activated on existing receivers, and very few people have reported problems?


----------



## peak_reception

> I am a little confused everytime someone says the burden of proof is on DISH, what does that mean? That no matter what proof DISH offers judge will deny it?
> 
> Surely no one is disputing that DISH WILL offer proof, only that some of you think any proof by DISH will be a lie because they lied before. But I hope the judge does not use the same standard when determining whether the new DISH claim is valid or not.
> 
> So the question still is, when DISH produces that proof, what happens then? Would the judge simply ignore it, or would the judge look at it? If he is going to look at it, how much time does he usually need? Will he need to consult experts? If so from which party? Only the Tivo experts, only the DISH experts or both? Or will he just pick out his own experts? Is he expert enough to determine on his own? -- jacmyoung


Your use of the word "proof" begs the question here. Proof means proven. Entering a court proceeding nothing is proven except what's been previously ruled on. DISH can offer argument and -- hopefully -- evidence that their software workaround no longer infringes. They cannot offer proof since a judge or jury decides that.


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## HobbyTalk

Don't know if I would say very few. Looking back through the release threads it seems that there have been many with issues. Between 3/07 and 12/07 alone the software went from version 401 to 448 (18 releases) with many "bad" releases during that time. Since any changes to get around the infringment would have been low level programming, they could have caused any number of seemingly unrelated issues.

Version 401 does have an interesting note: All existing VOD and TV Entertainment content will be deleted from the HDD due to changes to the underlying code


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## James Long

Curtis52 said:


> As far as the models listed in the injunction go, it doesn't matter one way or the other. It's over. It was called Final Judgment and Permanent Injunction. As in final and permanent.


It's the old Jedi mind trick: These are not the DVRs that the injunction covers. These are new DVRs that have new code that does not infringe.



Greg Bimson said:


> My only theory is that of the software claims found infringing, it would be darn near impossible to change the software to make it non-infringing.
> 
> Now we are to believe a massive rewrite of the code has been downloaded and activated on existing receivers, and very few people have reported problems?


All DISH has claimed to have done is remove the offending code (covered by the patent) and come up with a way of operating their DVRs without that particular code. Members of this forum have been complaining about the code ... they just didn't know they had it at the time.

The code in question took the MPEG2 stream and marked it up with time references, which made it easy to index on low power processor based DVRs ... want to skip forward 30 seconds or back 10? Use the time index to find that place in the file. Want to run at double speed or another increment forwards or backwards? Use the time index to know that you're running at the correct speed. That is the code that Tivo holds the patent to and the subject of the complaint.

The new code, patent pending, written by Echostar _does not_ use Tivo's patented indexing. It uses more processing power and "intelligently guesses" the number of bytes to jump in the file to jump forward or back, or run at a different speed. Those guesses can be wrong and PEOPLE HAVE NOTICED.

There have been complaints of "30 second skip" not skipping an exact 30 seconds, as well as the skip back not being an exact 10 seconds any more. These are the visible byproducts of code that "guesses" the position in a file instead of using the Tivo patented indexing. And clear proof that something has changed in the code.

To assume that Echostar could not rewrite the code avoiding "TimeWarp" is a bit closed minded. As if Tivo is the only company in the world who could design a DVR!


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## Curtis52

Here is claim 31 of TiVo's patent. This is what Dish was found to infringe. The hardware claim was remanded.

"31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:

providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;

providing a source object, wherein said source object extracts video and audio data from said physical data source;

providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;

wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;

wherein said source object is automatically flow controlled by said transform object;

providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;

wherein said decoder converts said streams into display signals and sends said signals to a display;

wherein said sink object is automatically flow controlled by said transform object;

providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and

wherein said control object sends flow command events to said source, transform, and sink objects. "


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## jacmyoung

Greg Bimson said:


> ...that TiVo has already reverse-engineered the box to determine the scope of possible infringement....


In fact I think Tivo already said about a month ago they did just that and they had determined the DISH patent claim was impossible to achieve, and this was all going to be over in three months. Remember they said that very shortly after the new DISH patent application, I assume they had very little time to reverse-engineer a DVR for that purpose.

Now I have trouble believing if it is such an open shut case, why DISH continues to show absolutely no sign of making a deal? Exactly what they see in their own claim that is so certain they no longer infringe, and in the eyes of Tivo it was absolutely impossible.

The only thing I can gauge is currently DISH is still loudly proclaim their new software does not infringe, but compare to a month ago, is Tivo still loudly proclaim that DISH was impossible? I don't know anybody seen Tivo's move on this one lately? I assume compared to a month ago they must had a little more time to reverse-engineer this thing. Just curious.


----------



## toad57

Doggfather said:


> Tivo is a horrible little company with a crap product who can't accept that it is crap and is accordingly going after those who had success with an idea that they can't successfully patent. ... Die Tivo Die ;0 You shall not be missed! Click beep Boop BANG!


Have you ever used a Tivo product?

Yes, that 'crap product' that is called Tivo is the only thing that is keeping me a faithful DirecTV customer right now.

The awful DirecTV-with-integrated-Tivo product has permitted me (some via software enhancements) to:


Upgrade my recording capacity
Record programs based on actors, keywords found in program descriptions, genres, or even premieres of programs
Make modifications to allow "multi-room viewing" (watch programs on other DTivos) via my home network
Add a web interface (which I can securely access via the Internet) to perform various functions, including setting a program to record
Display videos, pictures and play music from my home file server
A gateway for streaming audio from the Internet
Display video content served from my PC
Permit me to view program content stored on the DTivo on my PC
The above features are a large part of my DVR experience.

Please *Doggfather*, provide us with the timeframes in which Dish Network DVRs will have all of the above features.


----------



## Curtis52

James Long said:


> The code in question took the MPEG2 stream and marked it up with time references, which made it easy to index on low power processor based DVRs ... want to skip forward 30 seconds or back 10? Use the time index to find that place in the file. Want to run at double speed or another increment forwards or backwards? Use the time index to know that you're running at the correct speed. That is the code that Tivo holds the patent to and the subject of the complaint.


Time stamping was in claims 6 and 7 of the patent. Dish infringed claim 31.

"6. The process of claim 1, wherein said Media Switch calculates and logically associates a time stamp to said video and audio components.

7. The process of claim 1, wherein said Media Switch extracts time stamp values from a digital TV stream and logically associates said time stamp values to said video and audio components. "


----------



## jacmyoung

Curtis52 said:


> Time stamping was in claims 6 and 7 of the patent. Dish infringed claim 31.
> 
> "6. The process of claim 1, wherein said Media Switch calculates and logically associates a time stamp to said video and audio components.
> 
> 7. The process of claim 1, wherein said Media Switch extracts time stamp values from a digital TV stream and logically associates said time stamp values to said video and audio components. "


The whole ponit of the new DISH patent claim is it no longer uses such "media switch."


----------



## bobukcat

Kheldar said:


> Maybe a portion would agree to $13.95/mo for TiVo + upfront equipment costs, but both cable and D* offer cheaper systems that aren't so much of a kludge. Connecting a stand-alone TiVo to an E* receiver would only get you single-tuner capability. Granted, though, people that can't live without E* may select this option.


Cable offers a cheaper alterantive DVR *for now*, I say that because if Tivo wins this thing after all the appeals, etc. and E* is forced into a license agreement you can bet they (Tivo) will be going after the next manufacturers soon!

D* may be the only one protected because of their previous licensing and agreement not to pursue action against each other. I say may because I have no way of knowing if, or to what degree, DVRs from SA, Motorola, and others infringe the same patents.


----------



## James Long

toad57 said:


> Please *Doggfather*, provide us with the timeframes in which Dish Network DVRs will have all of the above features.


At the moment the issue is to make sure that DISH's equipment remains a DVR ... they can work on their version of these features once the ability to sell DVRs is secured. 

:backtotop


----------



## Ohioankev

James Long said:


> Those models don't infringe with the new software.
> 
> (Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. Yes, they do. No, they don't. That should cover the next 100 posts.  )


Thank you James I needed a good laugh...

If it comes down to it DIsh will pay the $$$, make a deal with TiVo and then charge us more for DVR service. However they will fight tooth and nail.

However with that said if I woke up one day and found out that I had to watch live TV, or that my 625 didn't work because the Harddrive had to be disabled and even live tv goes through the HDD then I think I would call Dish and get out of my two year contract, try to say that they infringed on it first by not being able to legally offer me services, and if i had to just pay the $14 for each additional month because it's this simple there is no way that I could ever go back to watching live TV and why would I pay over a $100/month for something that i wouldn't have any interest in watching anymore in the age of DVD and Blu-Ray.

That's just my opinion from the consumer side, screw the technical and legal talk. Dish knows this and I believe they have various plans to cover many scenarios, including the one for worse case scenario.


----------



## Herdfan

Curtis52 said:


> It would be a new injunction. A preliminary injunction only on the new DVRs based on the likelihood that the new DVRs also infringe given Dish's history of infringing despite statements that they didn't infringe. The new DVRs would be blacked out until Dish can prove they don't infringe. None of this would have any impact on the existing permanent injunction and the blacked out old DVRs.


I think this would be a mistake from a strategic point of view. TiVo will have an appeal-approved injunction that could cripple DISH. If they go for a new injunction on the new DVR's, they could put their current injunction at risk especially if the judge buys the "new non-infringing software" argument.

The current injunction as it stands is enough leverage to make DISH come to an agreement.


----------



## Herdfan

jacmyoung said:


> Keep that in mind when you answer my question, that the *hardware infringement was dismissed*,


Why does this keep getting stated as such? It was not dismissed! It was *Reversed and Remanded*.

*Dismissed* implies that the court threw it out and TiVo can never make the claim again. All the court did was return it to the trial court for retrial on a different standard.

Equating it to football, the offense has the ball and makes a first down,(TiVo District Court win on Hardware Claims), but the offensive line was holding and the ref threw a flag, (Appeals court reverse and remand), so the offense still has the ball and can still try for the first down, but has farther to go (retrial at District Court with possibly a tougher standard). Offense can still score, but it might be harder. Contrast with:

The offense thows and interceptions and now the other team has the ball (Dismissal as the offense no longer has a chance to score).


----------



## jacmyoung

Ohioankev said:


> ...If it comes down to it DIsh will pay the $$$, make a deal with TiVo and then charge us more for DVR service. ...


This whole notion that the company will pass on the cost to the consumers is way over rated. They can not charge their customers too much above their competitors, else people will leave.

Any yes if you wake up in the morning losing your DVR functions, you should have every right to switch without paying a fee. For that reason DISH will do everything they can to not allow such to happen, and if they anticipate such to happen soon, a remedy will be provided, such as replacing your 625 with a 622.

No DISH DVR users should be too concerned, it is unnecessary, there are more important things in life such as whether your dog is happy this morning.


----------



## Curtis52

jacmyoung said:


> Any yes if you wake up in the morning losing your DVR functions, you should have every right to switch without paying a fee. For that reason DISH will do everything they can to not allow such to happen, and if they anticipate such to happen soon, a remedy will be provided, such as replacing your 625 with a 622.


When my car has a flat I don't jack up the car and change the oil.


----------



## Greg Bimson

Herdfan said:


> I think this would be a mistake from a strategic point of view. TiVo will have an appeal-approved injunction that could cripple DISH. If they go for a new injunction on the new DVR's, they could put their current injunction at risk especially if the judge buys the "new non-infringing software" argument.
> 
> The current injunction as it stands is enough leverage to make DISH come to an agreement.


Acutally, I want to see if this makes sense...

The injunction, which becomes active without anyone's approval, already states that any DVR's "not colorably different" are to be turned off. And from a re-read of the injunciton, I now don't believe there is any wiggle room. All receivers listed in the injunction must be turned off once the injunction is live. If DISH/SATS chooses not to turn off the offending DVR's, TiVo will have no choice but to start the contempt proceeding. And at that exact point, while trying to enforce a standing injunction, TiVo can also point out that there are other DISH/SATS DVR's that aren't colorably different, and should also be turned off. It would be another negotiating point for TiVo.


----------



## Curtis52

Greg Bimson said:


> TiVo can also point out that there are other DISH/SATS DVR's that aren't colorably different, and should also be turned off.


Are only colorably different. Not "aren't".


----------



## Steve

... I thought the participants of this thread would enjoy a pleasant diversion, also related to patent infringement claims.

From *Audioholics.com*:

_*Blue Jeans Cable Strikes Back - Response to Monster Cable*

by Tom Andry - last modified April 15, 2008 11:00

Blue Jeans Cable Strikes Back - Response to Monster Cable

Not long ago we reported that Monster Cable had issued a cease and desist letter to Blue Jeans Cable about their Tartan cables. Little did the lawyer drones over at Monster know that Kurt Denke, the president of Blue Jeans was, in a former life, a lawyer by trade. Oops! Someone pushed around the wrong "small" company! While we are no legal experts, we recognize humor when we see it. And this is funny. With Blue Jeans Cable's permission, we've included their full response to Monster's letter below. Kurt wants to keep this entire process completely open to the public and we're more than happy to oblige. Enjoy_

Full text of the letter appears here.

/steve

{DISCUSSION ONGOING IN THE OT FORUM: HERE }


----------



## inkahauts

How old are the patents in question in this lawsuit? I am not completely sure if they are old enough, but I'm guessing they are. What am I saying you ask? Simple.. Technically speaking, if Tivo really wins and ends up securing licenses from Dish, can Directv do the same thing to Dish? If you know Tivos history really well and all the litigation that they went through with ReplayTV, you understand why I bring this up. Tivo can never go after Directv because of its purchase of Replaytv even after their agreements end. I'm not bringing this up because I'm trying to start a Directv should sue Dish thread. In fact, I for one would hate to see that. I bring it up because I am curious about how patent law works in situations like this. If more than one company owns a patent, and one sues a third, how often does the co owner go after them as well later on? Honestly, I don't think any Dish sub will ever wake up one morning and suddenly their DVR will be no more. I just don't see that happening. But how long before everyone is paying someone to license any kind of DVR?


----------



## Herdfan

Greg Bimson said:


> Acutally, I want to see if this makes sense...
> 
> The injunction, which becomes active without anyone's approval, already states that any DVR's "not colorably different" ........ TiVo can also point out that there are other DISH/SATS DVR's that aren't colorably different, and should also be turned off. It would be another negotiating point for TiVo.


And if it all stays in Folsom's court, then no problem. But if Folsom issues judgement that the newer DVR's infringe, I would think that would give DISH an opening back to the appeals court rather quickly at which point they might be able to get a stay while they argue the merits of both new DVR's and new software.

As it is now, Folsom's injunction is absolute and powerful. Any action by TiVo that has the potential to again remove jurisdiction from Folsom also has the potential of another stay being issued.

At this point, beating them with an 80 lb hammer is not much different than beating them with a 100 lb hammer.


----------



## Herdfan

inkahauts said:


> I'm not bringing this up because I'm trying to start a Directv should sue Dish thread. In fact, I for one would hate to see that.


I don't think D* would even if they could. TiVo is inflicting enough damage as it is. Besides, every E* sub is a potential D* sub and vice versa. D* would not want to anger current E* subs by attempting to litigate their DVR's out of existence as those subs would probably flee to cable and not D*. D* wants them mad a TiVo and since they already embrace satellite's supremacy to cable, D* wants to welcome them with open arms.


----------



## jacmyoung

Herdfan said:


> ...As it is now, Folsom's injunction is absolute and powerful. Any action by TiVo that has the potential to again remove jurisdiction from Folsom also has the potential of another stay being issued....


My point too. Tivo's safest bet is to stick to the current injunction. Any addition to it risks an successful apeal. Why give DISH that chance when finally after all these years DISH's appeals have just about run out?

It may sound too much a theory, but I happen to think DISH deciding all the sudden to move full speed ahead with the full-MPEG4 transition may have some to do with this injunction. What better opportunity then this one to tell all the impacted DVR users that you have been selected to have your DVR's replaced with our all new MPEG4-only DVR's?


----------



## Tom Robertson

inkahauts said:


> How old are the patents in question in this lawsuit? I am not completely sure if they are old enough, but I'm guessing they are. What am I saying you ask? Simple.. Technically speaking, if Tivo really wins and ends up securing licenses from Dish, can Directv do the same thing to Dish? If you know Tivos history really well and all the litigation that they went through with ReplayTV, you understand why I bring this up. Tivo can never go after Directv because of its purchase of Replaytv even after their agreements end. I'm not bringing this up because I'm trying to start a Directv should sue Dish thread. In fact, I for one would hate to see that. I bring it up because I am curious about how patent law works in situations like this. If more than one company owns a patent, and one sues a third, how often does the co owner go after them as well later on? Honestly, I don't think any Dish sub will ever wake up one morning and suddenly their DVR will be no more. I just don't see that happening. But how long before everyone is paying someone to license any kind of DVR?


As I understand the ReplayTV-TiVo arrangements, TiVo "owns" the intellectual properties (patents) while ReplayTV has permanent rights to use the TiVo IP.

This does not grant ReplayTV the opportunity to sue infringers of the TiVo patents, hence does not grant DIRECTV the right to sue Dish or anyone on these patents. Just means TiVo wouldn't be able to sue DIRECTV.

Cheers,
Tom


----------



## Curtis52

Tom Robertson said:


> As I understand the ReplayTV-TiVo arrangements, TiVo "owns" the intellectual properties (patents) while ReplayTV has permanent rights to use the TiVo IP.
> 
> This does not grant ReplayTV the opportunity to sue infringers of the TiVo patents, hence does not grant DIRECTV the right to sue Dish or anyone on these patents. Just means TiVo wouldn't be able to sue DIRECTV.


There were no known agreements between TiVo and ReplayTV/Sonicblue. The lawsuits each had with the other were dropped without prejudice with no known agreements. ReplayTV was in the process of being sued out of existence by the studios and didn't have the resources to continue the lawsuit. TiVo knew they couldn't get anything from ReplayTV if they won. ReplayTV declared bankruptcy 4 months later.

TiVo and DirecTV have had a cross licensing agreement for years. It expires in 2010.


----------



## jacmyoung

Curtis52 said:


> There were no known agreements between TiVo and ReplayTV/Sonicblue. The lawsuits each had with the other were dropped without prejudice with no known agreements. ReplayTV was in the process of being sued out of existence by the studios and didn't have the resources to continue the lawsuit. TiVo knew they couldn't get anything from ReplayTV if they won. ReplayTV declared bankruptcy 4 months later.
> 
> TiVo and DirecTV have had a cross licensing agreement for years. It expires in 2010.


The problem I had with you and Greg is, and I am not saying this with disrespect, because I think both of you are very articulate in your statements, and very knowledgeable. But while you may be technically correct, what you said did not change in anyway what Tom had said.

That is Tivo can or will not sue DirecTV for the same reason they sued DISH. DirecTV did not buy RepayTV for charity reasons. They had their plan not to use Tivo a long time ago, and they have lately made their intention abundenly clear, and they only did so after buying RepalyTV, for a good reason, that Tivo will not be able to sue them, or if Tivo is foolish enough to try that, they will bankcrupt themselves in legal expenses.

That leads to my other point, Tivo has no future even if it can win a total war against DISH, meaning they are successful in getting paid $200 million or more and able to shut down all DISH DVR's on the list. They are still doomed because no one will license their flagship patent. Their only hope is to convince Charlies to sign a license agreement, not because DISH has to rather because it may be more cost effective at this time.

I am not saying so because I think DISH was in the right, or Tivo does not deserve it. It is the opposite, DISH was wrong, and Tivo no question deserved to be paid and deserves to have its name a houshold recognition.

But Tivo's patent is at the same time not necessary for the modern DVR's to function. Many who buy into this Tivo's fantasy mistakenly believe Tivo has the right to DVR concept itself, that anyone who make a DVR must pay Tivo. No Tivo only has patents on specific methods of a DVR, not the concept of a DVR. They can not because DVR as a concept existed long time ago.

The concept of recording something while playing back something else is somewhat new, but even this is restricted to the specific methods involved, meaning that one can acheive such concept without infringing on Tivo's patent.

Had Tivo tried to convince the court the "recording something while playing back something else" is rightfully their own, and be successful, it would be an entirely different matter, but they did not try that route, because they knew it would not stick.

As such they have no future. They still have other things to sustain their business, if they continue to improvise, and be innovative as they once were, they can succeed. Just that this particular patent is no longer the ticket. It has passed it's time.


----------



## Tom Robertson

Curtis52 said:


> There were no known agreements between TiVo and ReplayTV/Sonicblue. The lawsuits each had with the other were dropped without prejudice with no known agreements. ReplayTV was in the process of being sued out of existence by the studios and didn't have the resources to continue the lawsuit. TiVo knew they couldn't get anything from ReplayTV if they won. ReplayTV declared bankruptcy 4 months later.
> 
> TiVo and DirecTV have had a cross licensing agreement for years. It expires in 2010.


It seems to be there was an agreement between TiVo and SonicBlue, at least in principle. They agreed to drop the lawsuits against each other and issued a joint press release at the time.

That said, I admit I can not find a definitive statement that they had an affirmative cross licensing agreement. I was going on the lore of the Replay purchase by DIRECTV.

Cheers,
Tom


----------



## Greg Bimson

jacmyoung said:


> That is Tivo can or will not sue DirecTV for the same reason they sued DISH. DirecTV did not buy RepayTV for charity reasons. They had their plan not to use Tivo a long time ago, and they have lately made their intention abundenly clear, and they only did so after buying RepalyTV, for a good reason, that Tivo will not be able to sue them, or if Tivo is foolish enough to try that, they will bankcrupt themselves in legal expenses.


Let's call it semantics, again.

TiVo's last licensing agreement has a clause that precludes TiVo from suing DirecTV until the agreement is over, in 2011. After the agreement runs out, the above is very true.


jacmyoung said:


> But Tivo's patent is at the same time not necessary for the modern DVR's to function. Many who buy into this Tivo's fantasy mistakenly believe Tivo has the right to DVR concept itself, that anyone who make a DVR must pay Tivo. No Tivo only has patents on specific methods of a DVR, not the concept of a DVR. They can not because DVR as a concept existed long time ago.


Ah, but let's make sure of that. After all, there is this hardware configuration that TiVo holds a patent on, and every DISH/SATS DVR has it. It is only a matter of time if it is infringing or not. DISH/SATS may have won a reprieve on the hardware, but the hardware configuration in the patent is needed to keep a DVR under cost control, making it more profitable for the distribution companies.


----------



## jacmyoung

Greg Bimson said:


> Let's call it semantics, again.
> 
> TiVo's last licensing agreement has a clause that precludes TiVo from suing DirecTV until the agreement is over, in 2011. After the agreement runs out, the above is very true


I did not dispute that at all, rather that Tivo will not sue DirecTV, and if it chooses to sue they will die a even more painful death due to the expenses before they might win, if at all.



> Ah, but let's make sure of that. After all, there is this hardware configuration that TiVo holds a patent on, and every DISH/SATS DVR has it. It is only a matter of time if it is infringing or not. DISH/SATS may have won a reprieve on the hardware, but the hardware configuration in the patent is needed to keep a DVR under cost control, making it more profitable for the distribution companies.


You have again assumed somehow hardware configurations can not be changed to get around the hardware patent. I was not even refering to DISH DVR's, but modern DVR's in general. They can easily design new hardware/software to get around both the Tivo software and hardware patents. If DISH has yet done so successfully, then it is only a matter of time some one will do it. Because Tivo does not hold patent on the concept of a DVR.


----------



## Greg Bimson

jacmyoung said:


> You have again assumed somehow hardware configurations can not be changed to get around the hardware patent.


I understand.

However, for the sake of argument only, I believe any DVR DISH/SATS has on the market now more than likely infringes upon the TiVo Time Warp patents' hardware claims. Think about that for a minute.

Changing hardware does not fix the install base of existing receivers.


----------



## jacmyoung

Greg Bimson said:


> I understand.
> 
> However, for the sake of argument only, I believe any DVR DISH/SATS has on the market now more than likely infringes upon the TiVo Time Warp patents' hardware claims. Think about that for a minute.
> 
> Changing hardware does not fix the install base of existing receivers.


I don't have to think about it, I can agree with you 100%.

But to prove it will more than likely require a new jury trial, which as you know can take a long time to resolve, and at the meantime the DISH all-MPEG4 conversion is in full speed ahead, by the time some sort of resolutions are finally in sight, DISH could have all new hardware and software platform in place.


----------



## Curtis52

jacmyoung said:


> I don't have to think about it, I can agree with you 100%.
> 
> But to prove it will more than likely require a new jury trial, which as you know can take a long time to resolve, and at the meantime the DISH all-MPEG4 conversion is in full speed ahead, by the time some sort of resolutions are finally in sight, DISH could have all new hardware and software platform in place.


If it required a new trial, Judge Folsom wouldn't have included provisions in his permanent injunction for newer models. He would have just listed the then infringing models and left future models to future trials and not even bothered to mention them. The only thing that has to be shown is similarity to the older models in a contempt hearing. In the interim, he will most likely approve a preliminary injunction shutting them down immediately.


----------



## Greg Bimson

Just so Curtis and Jac are on the same page, Jac is talking about a new trial for hardware claims. It will be interesting to see the strategy if the hardware claims are pressed on by TiVo. If it goes to another trial, I'd suspect the hardware claims would be abandoned, unless the software claims hit a brick wall.

Anyways, that's what that "not colorably different" phrase is for. DISH/SATS cannot use a similiar infringing software and place it on a 722 and call it a 7022. That is how TiVo and the judge would be able to have those subject to the injunction.


----------



## jacmyoung

Curtis52 said:


> If it required a new trial, Judge Folsom wouldn't have included provisions in his permanent injunction for newer models. He would have just listed the then infringing models and left future models to future trials and not even bothered to mention them. ....


Because at the time he did not know the hardware claim would be over turned. Of course he can still include all the new DVR's in his injunction, but I think we have touched on that more than enough times why it will be a very risky move for Tivo to do so consider that the hardware claim has been over turned.


----------



## Curtis52

jacmyoung said:


> Because at the time he did not know the hardware claim would be over turned. Of course he can still include all the new DVR's in his injunction, but I think we have touched on that more than enough times why it will be a very risky move for Tivo to do so consider that the hardware claim has been over turned.


Software can be similar from one model to the next. The new models use the Broadcom chip. That should be enough to justify a preliminary injunction.

"Based on evidence that the Broadcom chip and the temporary data storage 
buffer operate together in the process of moving data from the physical data source, it 
was reasonable for the jury to find that the temporary data buffer was simply an 
extension of the physical data source where data was stored pending its extraction for 
further processing. From that evidence, the jury could permissibly find that the "Ioctl" 
command, the relevant portion of the source object in the EchoStar DVRs, extracts 
video and audio data from the physical data source. As there is substantial evidence 
that the required data and operations are performed by the accused DVRs, and 
because we agree that the pertinent data and operations do not need to be housed 
within a particular file or grouping of lines of code, the EchoStar DVRs satisfy the 
"extracting" limitation. We therefore uphold the jury's verdict that the EchoStar DVRs 
infringe the software claims of the '389 patent. "


----------



## dgordo

jacmyoung said:


> Because at the time he did not know the hardware claim would be over turned. Of course he can still include all the new DVR's in his injunction, but I think we have touched on that more than enough times why it will be a very risky move for Tivo to do so consider that the hardware claim has been over turned.


One minor point, semantics perhaps, the claim was not overturned, it was reversed and remanded for further proceedings. Huge difference.


----------



## Herdfan

dgordo said:


> One minor point, semantics perhaps, the claim was not overturned, it was reversed and remanded for further proceedings. Huge difference.


Been saying that for 4 pages. It falls on deaf ears.


----------



## PatentBoy

Curtis52 said:


> Ideas cannot be patented. Methods and processes can be patented.


How about structures? an apparatus?


----------



## Curtis52

PatentBoy said:


> How about structures? an apparatus?


http://www.uspto.gov/web/offices/pac/doc/general/index.html#whatpat

Link


----------



## spear61

Look's like it is not over until the fat lady sings.

From the 3/3/2008 dish 10k -

"If the Federal Circuit's decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense. If we are not
able to successfully defend against claims that the Design-Around infringes Tivo's patent, we could be prohibited from distributing DVRs, or
be required to modify or eliminate certain user-friendly DVR features that we currently offer to consumers. In that event we would be at a
significant disadvantage to our competitors who could offer this functionality and, while we would attempt to provide that functionality
through other manufacturers, the adverse affect on our business could be material. We could also have to pay substantial additional damages."

http://moneycentral.msn.com/investor/sec/filing.asp?Symbol=DISH


----------



## dgordo

Herdfan said:


> Been saying that for 4 pages. It falls on deaf ears.


I understand your  , its very obvious that many people posting dont know anything about civil procedure.


----------



## Greg Bimson

spear61 said:


> Look's like it is not over until the fat lady sings.





DISH 10K said:


> If the Federal Circuit's decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense.


The problem is that there isn't much DISH/SATS can challenge. When TiVo decides to challenge the Design-Around, it will be in a contempt of court proceeding. It isn't simply filing a new lawsuit.

I am wonder what this will look like when the fat lady sings.


----------



## jacmyoung

dgordo said:


> One minor point, semantics perhaps, the claim was not overturned, it was reversed and remanded for further proceedings. Huge difference.


Yes semantically speaking there is a hugh difference, but as we had discussed over and over, in this case the remand is practically the same as over-turning because of the reasons cited by the appeals court, if Tivo wants a summary judgment on the hardware claim, it can easily be appealed, and according to the appeals court opinion, the appeal will almost certainly be successful. So Tivo will most likely need a new trial to settle it. That in effect is being over turned.


----------



## Curtis52

jacmyoung said:


> Yes semantically speaking there is a hugh difference, but as we had discussed over and over, in this case the remand is practically the same as over-turning because of the reasons cited by the appeals court, if Tivo wants a summary judgment on the hardware claim, it can easily be appealed, and according to the appeals court opinion, the appeal will almost certainly be successful. So Tivo will most likely need a new trial to settle it. That in effect is being over turned.


Are you talking about the topic they didn't address because they weren't briefed on it?

"The parties, however, have not briefed that issue in any detail, and we therefore do not address it. "


----------



## jacmyoung

Greg Bimson said:


> The problem is that there isn't much DISH/SATS can challenge. When TiVo decides to challenge the Design-Around, it will be in a contempt of court proceeding. It isn't simply filing a new lawsuit.
> 
> I am wonder what this will look like when the fat lady sings.


DISH did not say they will seek a new trial, rather a vigorous defense. That can include a vigorous defense during a contempt of court hearing.

The fact that in its foreward-looking statement they warned the potential to lose those DVR's on the list, actually tells us how determined they are, that they are willing to lose the case rather sign an agreement with Tivo.

That is indeed a very bad news, not a good news for Tivo. They can win the battle but lose the war, conversely DISH can lose the battle and eventually win the war, if, that is if they can mount an effective rescue mission to replace all impacted DVR's or minimize the impact of losing some DVR subs. It will be very costly no doubt, but if they are so determined they can definitely weather it given their resources.


----------



## jacmyoung

Curtis52 said:


> Are you talking about the topic they didn't address because they weren't briefed on it?
> 
> "The parties, however, have not briefed that issue in any detail, and we therefore do not address it. "


No I am talking about what the appeals court said in essence, that they could not uphold the hardware claim even if substantial evidence supported the hardware claim. Meaning you can all go back to brief on it again, as long as it is not a jury's verdict, the appeals court will have a very hard time upholding it.

In a jury trial jury's verdict is paramount. Judge's own decision can be easily contested in absence of a jury's verdict.


----------



## Richard King

> if they can mount an effective rescue mission to replace all impacted DVR's or minimize the impact of losing some DVR subs.


It would be interesting to see how many boxes are sitting in SATS warehouses all over the country in preparation for a massive deployment.


----------



## dgordo

jacmyoung said:


> Yes semantically speaking there is a hugh difference, but as we had discussed over and over, in this case the remand is practically the same as over-turning because of the reasons cited by the appeals court, if Tivo wants a summary judgment on the hardware claim, it can easily be appealed, and according to the appeals court opinion, the appeal will almost certainly be successful. So Tivo will most likely need a new trial to settle it. That in effect is being over turned.


Thanks for reminding me why I stopped paying attention to this topic. The appeals court said no such thing, this was your misinterpretation. Until you figure out how to read an appellate court opinion and learn civil procedure responding to anything you say is pointless.


----------



## jacmyoung

dgordo said:


> Thanks for reminding me why I stopped paying attention to this topic. The appeals court said no such thing, this was your misinterpretation. Until you figure out how to read an appellate court opinion and learn civil procedure responding to anything you say is pointless.


How about we just wait to see how this hardware claim should play out? It is not as if we have to wait another 5 years, you think?


----------



## Herdfan

jacmyoung said:


> Yes semantically speaking there is a hugh difference, but as we had discussed over and over, in this case the remand is practically the same as over-turning.


However, over-turning a decision is not the same as dismissal.



> Dismiss. v. the ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony.


Dismiss means that the claim is over and no further action on it is permitted. That is not the case here as there are several ways the hardware claims can move forward.


----------



## Curtis52

Precedence:

"A contempt proceeding for violation of a patent infringement injunction will lie where the new and alleged offending device is merely 'colorably' different from the enjoined device or from the patent. In American Foundry & Mfg. Co. v. Josam Mfg. Co., supra, this Court held, 79 F.2d at 117:
10

'As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"

http://bulk.resource.org/courts.gov/c/F2/346/346.F2d.474.17814.html


----------



## jacmyoung

Herdfan said:


> ... That is not the case here as there are several ways the hardware claims can move forward.


I never argued agaisnt that, but it is my belief the only likely way to move forward on the hardware claim is a new trial. That is my story and I am sticking to it. As I said we don't have to wait long to find out. I could be wrong but I could be right also. Let's not continue down this path again.


----------



## Herdfan

jacmyoung said:


> I never argued agaisnt that, but it is my belief the only likely way to move forward on the hardware claim is a new trial.


I agree, but if the hardware claimed was *dismissed*, that would not be possible.


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## Curtis52

Herdfan said:


> I agree,


The appeals court said that they could have upheld the hardware infringement on the basis of the doctrine of equivalents if briefings had been presented showing "that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents". There were no briefings on the subject provided during the appeal so they did not address it. Those briefings can be provided to the trial judge and he can make a ruling. Hardware infringement was remanded back to him.


----------



## jacmyoung

Herdfan said:


> I agree, but if the hardware claimed was *dismissed*, that would not be possible.


Alright now I understand I have one time or another misused the word "dismissed", even though I had always in the past used the word over-turned. You win.


----------



## jacmyoung

Curtis52 said:


> ... Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"...


Good let's get this out of the way now.

DISH only needs to demonstrate the new devices are "merely" "colorably" different in order to afford a contempt hearing, but they must demonstrate the new devices are more than "colorably" different in order to move the proceeding beyond the contempt hearing into a new hearing, and possibly even a new trial.

So let's consider the following two scenarios:

First Tivo asks the Judge to include all DISH DVR's in the injunction and the Judge agrees. Now IMO it will be very easy for DISH to argue that the VIP DVR's are in fact more than colorably different, because they have different chips in there (before anyone starts to argue hardware is the same keep in mind the hardware claim is over-turned), and they have OTA tuners, they do HD, and they are MPEG4 capable, among other things. My point is it can be apparent that the new DVR's are more than colorably different and the proceeding be moved beyond the contempt hearing, and Tivo risks another delay, not to mention the possibility of losing the argument and lose the whole injuction benefit. Is this the risk Tivo wants to take? I don't know maybe if Tivo is convinced DISH will not sit down and negotiate a license agreement, only that Tivo will have to incur more legal expenses but that certainly can be alright for them.

The second is Tivo to play safe, ask for injunction as is, only the DVR's on the list will be impacted. Now in this case it will be more difficult for DISH to argue that the "new" devices are more than "colorably" different because physically they are the same, the only thing DISH can do is to convince the judge the software used now is more than "colorably" different. DISH still has a chance but to prove that will be tricky. Therefore my guess is Tivo is likely to choose the second route.

I also believe Tivo will not ask the judge to produce a summary judgment on the hardware issue for reasons I have stated over and over. But obviously some of you totally disagree, that's fine, we will just have see who is right shortly. And keep in mind that even if the Judge produces a summary judgment in favor of Tivo on the hardware issue, it will be over-turned on appeal, again for reasons I stated based on my reading of the appeals court opinions.

Again I can be wrong but this is the story I am sticking to until I am proven wrong.


----------



## Curtis52

jacmyoung said:


> Now IMO it will be very easy for DISH to argue that the VIP DVR's are in fact more than colorably different, because they have different chips in there (before anyone starts to argue hardware is the same keep in mind the hardware claim is over-turned), and they have OTA tuners, they do HD, and they are MPEG4 capable, among other things.


"Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent. "


----------



## Curtis52

jacmyoung said:


> keep in mind the hardware claim is over-turned


The hardware claim has not been overturned. The USPTO has ruled that all claims in the patent are valid.


----------



## Greg Bimson

That is, if the 622 and 722 ran the same type of infringing software as the models that were noted, then they are not colorably different, and subject to the injunction, pending a ruling during the contempt proceeding.


----------



## jacmyoung

Greg Bimson said:


> That is, if the 622 and 722 ran the same type of infringing software as the models that were noted, then they are not colorably different, and subject to the injunction, pending a ruling during the contempt proceeding.


That wasn't my point, my point was DISH can argue the difference in hardware alone may be sufficient to convince the judge that they are more than colorably different, and the proceeding can be moved beyond the contempt hearing, of course the new hearing will determine if both the hardware and softeware are colorably different, therefore more delays, not to mention the possibility that DISH proves the new software is indeed non-infringing. Is this the risk Tivo wants to take?

Keep in mind DISH is claiming the software is non-infringing, that alone says it is more than colorably different. I don't think it is possible for the judge to make a reasonable determination of such claim's validity in a very swift contempt hearing, so Tivo runs the risk of going into a new hearing, or even a new trial if DISH is successful.


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## Curtis0620

DISH claimed the software didn't infringe before the original trial, so I don't think that claim will make a difference in the injunction for the stated models.


----------



## bobcamp1

jacmyoung said:


> I also believe Tivo will not ask the judge to produce a summary judgment on the hardware issue for reasons I have stated over and over...


The appeals court stated that the jury was not given proper instructions regarding the hardware claim. But they also said that they were not going to tell the lower court how to proceed on the hardware claims only because neither Tivo or E* mentioned it in the appeal. (E* dropped the ball here). In this case, even if Judge Fossom were to grant a summary judgment to either party, that would be appealed immediately. And since the appellate court did not vigorously dismiss nor uphold the claims, I think they would err on the side of caution and force a new trial maybe even with specific jury instructions.

Not only that, but summary judgments are only used when none of the facts are in dispute. I don't think that qualifies here. I'm sure each side will bring in their own experts and that they will contradict each other.


----------



## Greg Bimson

jacmyoung said:


> That wasn't my point, my point was DISH can argue the difference in hardware alone may be sufficient to convince the judge that they are more than colorably different, and the proceeding can be moved beyond the contempt hearing, of course the new hearing will determine if both the hardware and softeware are colorably different, therefore more delays, not to mention the possibility that DISH proves the new software is indeed non-infringing. Is this the risk Tivo wants to take?


I think you missed Curtis' post, which I believe is from the injunction:


> Each Defendant ... are hereby restrained and enjoined ... from making, using, offering to sell or selling in the Untied States, the Infringing Products, ... *and all other products that are only colorably different therefrom in the context of the Infringed Claims*, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent


That is, if the ViP622 and 722 used practically the same software as the listed products, TiVo simply needs to have an expert state that the software claims were infringed on the 622 and 722 as well, and should also be turned off.


jacmyoung said:


> Keep in mind DISH is claiming the software is non-infringing, that alone says it is more than colorably different. I don't think it is possible for the judge to make a reasonable determination of such claim's validity in a very swift contempt hearing, so Tivo runs the risk of going into a new hearing, or even a new trial if DISH is successful.


No, DISH/SATS claims do not have merit. If TiVo finds software on the 622/722 that was similar to the listed infringing models, that is considered as "not colorably different".

If you are stating there'd be a new trial based on this evidence, it would only be for the 622/722. The rest of the listed DVR's should automatically be disabled, as only the Supreme Court at this time can fix that issue.


----------



## Greg Bimson

BobCamp1 said:


> And since the appellate court did not vigorously dismiss nor uphold the claims, I think they would err on the side of caution and force a new trial maybe even with specific jury instructions.


No. The Court of Appeals would examine if the District Court judge or magistrate misapplied law. Even the Court of Appeals stated they'd have no problem giving TiVo a guilty decision on the hardware claims if the doctrine of equivalents issue and the jury instructions regarding those were addressed. So if a summary judgment were granted back at District Court, as long as there wasn't a factual error or misapplication of law, then it would most likely stand.


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## spear61

Greg Bimson said:


> So if a summary judgment were granted back at District Court, as long as there wasn't a factual error or misapplication of law, then it would most likely stand.


You got it. The judge "finds the facts" and appeals courts are not "fact finders". Makes no difference if the judge does it alone or if a jury does it. The facts are the facts.


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## jacmyoung

As I said before I am not going to argue about the same issues over and over, my interpretion of the appeals court reasoning for upholding some and not upholding the other led me to my story to be unfolded. I will simply wait for the outcome to prove me right or wrong.


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## BNUMM

If you read the Echostar patent application it states that their software does the same thing but does not index the data before storing it. This does not appear to be more than colorably different. This would also help Tivo under the "Doctrine of Equivalents".


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## Curtis52

BNUMM said:


> If you read the Echostar patent application it states that their software does the same thing but does not index the data before storing it. This does not appear to be more than colorably different. This would also help Tivo under the "Doctrine of Equivalents".


Yep, the software claim Dish infringed (claim 31) says nothing about indexing.


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## jacmyoung

I just read Tivo's 10-k on the news wire, it does not look good.

In the past FY, Tivo lost 518,000 mainly DirecTV Tivo accounts, only added 19,000 of their own accounts. While they made $8.91/mo. on their own accounts they only made $0.91/mo. on DirecTV's Tivo account. Tivo's own account churn rate has been up each year for the last three FY's too.

They need to sit down and get an agreement with DISH, because obviously they will not get the DirecTV accounts back, once DirecTV is done with their upgrade there will be no DirecTivo to count on. The prospect with cable as they indicated in the 10-k, has not been going well either.

What surprised me was they only make $0.91/mo. from a DirecTivo account. Now if that is the going rate, why Charlie refuses to settle and go for a similar deal? They charge $5.98/mo. for their DVR fee, why the fight? Even if Tivo wants higher than $0.91 it can't be that much higher else it will be a matter for FCC to consider.

So the only conclusion I can draw from this is that DISH is convinced they can win.


----------



## Curtis0620

jacmyoung said:


> I just read Tivo's 10-k on the news wire, it does not look good.
> 
> In the past FY, Tivo lost 518,000 mainly DirecTV Tivo accounts, only added 19,000 of their own accounts. While they made $8.91/mo. on their own accounts they only made $0.91/mo. on DirecTV's Tivo account. Tivo's own account churn rate has been up each year for the last three FY's too.
> 
> They need to sit down and get an agreement with DISH, because obviously they will not get the DirecTV accounts back, once DirecTV is done with their upgrade there will be no DirecTivo to count on. The prospect with cable as they indicated in the 10-k, has not been going well either.
> 
> What surprised me was they only make $0.91/mo. from a DirecTivo account. Now if that is the going rate, why Charlie refuses to settle and go for a similar deal? They charge $5.98/mo. for their DVR fee, why the fight? Even if Tivo wants higher than $0.91 it can't be that much higher else it will be a matter for FCC to consider.
> 
> So the only conclusion I can draw from this is that DISH is convinced they can win.


TiVo charges their customers $12.95 per month, since DISH is being so difficult I would expect TiVo to demand closer to that amount (or somewhere in the middle).


----------



## jacmyoung

Curtis0620 said:


> TiVo charges their customers $12.95 per month, since DISH is being so difficult I would expect TiVo to demand closer to that amount (or somewhere in the middle).


No they can not. They can not charge DirecTV $0.91 then charge DISH much more that $0.91, if they do so FCC can kick their a$%#.


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## Curtis52

jacmyoung said:


> No they can not. They can not charge DirecTV $0.91 then charge DISH much more that $0.91, if they do so FCC can kick their a$%#.


You've got to be kidding.


----------



## jacmyoung

Curtis52 said:


> You've got to be kidding.


Absolutely not. There is FCC reg somewhere for the licensees to follow regarding fair charges, you can not unfairly charge one over the other, else close your license.


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## Tom Robertson

jacmyoung said:


> Absolutely not. There is FCC reg somewhere for the licensees to follow regarding fair charges, you can not unfairly charge one over the other, else close your license.


A lot can change over the time the DIRECTV contract was written vs. one now with Dish. Specific services could be vastly different (like including MRV or not) and DIRECTV's could be a fixed priced with a balloon next time whereas Dish is at today's "pricing". 

Cheers,
Tom


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## Curtis52

jacmyoung said:


> Absolutely not. There is FCC reg somewhere for the licensees to follow regarding fair charges, you can not unfairly charge one over the other, else close your license.


LOL. TiVo isn't a broadcaster. The FCC has no control over them.


----------



## jacmyoung

Tom Robertson said:


> A lot can change over the time the DIRECTV contract was written vs. one now with Dish. Specific services could be vastly different (like including MRV or not) and DIRECTV's could be a fixed priced with a balloon next time whereas Dish is at today's "pricing".
> 
> Cheers,
> Tom


No disagreement at all. While I doubt a balloon payment is even much an issue I can see the monthly charges more than $0.91 simply due to inflation, but to respond to Curtis52, yes Tivo must have some form of license by FCC because of their standalone DVR's, but that is not even the point, a company simply can not negotiate in bad faith, if Tivo charges DirecTV $0.91 then insists even $2.00 on DISH it will be negotiating in bad faith. Not legal whether FCC'ed or not. And if they insist on $2.00 because of the lawsuit threat that is even worse, it is black mailing.

Both sides must be fair in negotiating an agreement.


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## Curtis52

jacmyoung said:


> Tivo must have some form of license by FCC because of their standalone DVR's, but that is not even the point,


Not true and it is the point.


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## jacmyoung

Curtis52 said:


> Not true and it is the point.


I thought your point was $12.95/mo. do you still stand by it?


----------



## James Long

Tivo is an equipment provider ... get your mind off the FCC.
Someone may require fair contracts, but it's not the FCC.


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## jacmyoung

James Long said:


> Tivo is an equipment provider ... get your mind off the FCC.
> Someone may require fair contracts, but it's not the FCC.


Already did thank you very much.


----------



## Curtis52

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 
guilty of misuse or illegal extension of the patent right by reason of 
his having done one or more of the following: (1) *derived revenue* from 
acts which if performed by another without his consent would constitute 
contributory infringement of the patent; (2) licensed or authorized 
another to perform acts which if performed without his consent would 
constitute contributory infringement of the patent; (3) sought to 
enforce his patent rights against infringement or contributory 
infringement; (4) *refused to license* or use any rights to the patent;"


----------



## jacmyoung

Curtis52 said:


> 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
> guilty of misuse or illegal extension of the patent right by reason of
> his having done one or more of the following: (1) *derived revenue* from
> acts which if performed by another without his consent would constitute
> contributory infringement of the patent; (2) licensed or authorized
> another to perform acts which if performed without his consent would
> constitute contributory infringement of the patent; (3) sought to
> enforce his patent rights against infringement or contributory
> infringement; (4) *refused to license* or use any rights to the patent;"


There is one catch, if the patent owner decides to let someone use its patent, he can, with or without compensation, it is his call, as long as it is done at his consent. So if Tivo decides tomorrow to let DISH use its patent, and call off the entire lawsuit it can do so. Not that it will but it can certainly do so. One such possibility is Tivo and DISH sign a long term license agreement.

So I really don't know the point of your quote, I am saying so with respect because I learned a great deal through your posts. I might have missed your point again on this one.

And now I saw the Tivo 10-k by accident, and seeing how bad the numbers are with DirecTivo, I think it answers the question why DISH has been so bold lately in its appeals and fight despite the fact all signs point to a Tivo victory. Because DISH knows Tivo can not survive without a major partner. Since DirecTV is pretty much gone for Tivo, and cable, well who can rely on cable? Add to that the fact Tivo's own standalone service is not growing, DISH has no fear. They figure if they lose out completely in the end all it takes is a call from Charlie to say hey let's talk, I will license your patent and pay you a reasonable fee for the next ten years, that will be enough to put the end to it all. Because he is betting Tivo will gladly take that deal. As a result Charlie is not afraid of bluffing, even if his software still infringes.

In another word, Tivo must win big and only if they win big they may have a chance to get Charlie to come and sit at the table. The damages and injunction are of no interest to Tivo other than to get DISH to come to the table to sign a license agreement. If Tivo can not get DISH to sign, no damages nor injunctions can save them.


----------



## inkahauts

jacmyoung said:


> DISH did not say they will seek a new trial, rather a vigorous defense. That can include a vigorous defense during a contempt of court hearing.
> 
> The fact that in its foreward-looking statement they warned the potential to lose those DVR's on the list, actually tells us how determined they are, that they are willing to lose the case rather sign an agreement with Tivo.
> 
> That is indeed a very bad news, not a good news for Tivo. They can win the battle but lose the war, conversely DISH can lose the battle and eventually win the war, if, that is if they can mount an effective rescue mission to replace all impacted DVR's or minimize the impact of losing some DVR subs. It will be very costly no doubt, but if they are so determined they can definitely weather it given their resources.


How can they win the battle and loose the war? They have already won both, the trail and the appeals... Now its a matter of how much trouble Dish is in and how much the cleaning up will really cost them. Tivo wanted to get something out of this, and they have. Getting more would be more like icing on a cake. There is no way that they could possibly expect that Dish will have to sign a licensing agreement with them and that it would last indefinably. They must expect that no matter what, at some point, Dish will make sure that none of their DVR's are infringing, and probably sooner rather than later...



jacmyoung said:


> Absolutely not. There is FCC reg somewhere for the licensees to follow regarding fair charges, you can not unfairly charge one over the other, else close your license.


You could not be more wrong... Thats like saying that all grocery stores have to price arrowhead bottles of water at the same price... Tivo can ask for what ever fees they want from anyone... They are in no way bound by an agreement from one company to supply a service to another for the same amount of money... Do you think they are only charging the cable co's what they are charging Directv? I bet not.... I'd guess its more than 300% more...

Oh, and as someone else pointed out, the FCC would have nothing to do with this... The fees in question have nothing to do with actual broadcasting... Also, I can not recall the last time any government agency told a company that they can't charge 2 different companies different prices (astronomically different or only a penny different) for somewhat similar services or licenses when everyone is knowingly entering into the agreement with all the facts, and that they do have alternatives.. Otherwise people on Directv would have LIN HD stations right now....

Even better, thats like saying the DMV can't charge me different rates for a SUV, a Sports Car, and a Honda Civic for registration because they are all cars, and I'm paying for the exact same thing for all of them, the right to drive them on public roads... (Also, assume that I am purchasing them for the same price, say the SUV and the Sports car used for the same price as a new Civic...)


----------



## inkahauts

jacmyoung said:


> And now I saw the Tivo 10-k by accident, and seeing how bad the numbers are with DirecTivo, I think it answers the question why DISH has been so bold lately in its appeals and fight despite the fact all signs point to a Tivo victory. Because DISH knows Tivo can not survive without a major partner. Since DirecTV is pretty much gone for Tivo, and cable, well who can rely on cable? Add to that the fact Tivo's own standalone service is not growing, DISH has no fear. They figure if they lose out completely in the end all it takes is a call from Charlie to say hey let's talk, I will license your patent and pay you a reasonable fee for the next ten years, that will be enough to put the end to it all. Because he is betting Tivo will gladly take that deal. As a result Charlie is not afraid of bluffing, even if his software still infringes.
> 
> In another word, Tivo must win big and only if they win big they may have a chance to get Charlie to come and sit at the table. The damages and injunction are of no interest to Tivo other than to get DISH to come to the table to sign a license agreement. If Tivo can not get DISH to sign, no damages nor injunctions can save them.


So you think Tivo is betting their life on winning a suit against Dish? I don't, and logic says they aren't. And what company has ever done that... Its bnot good business sense... They are betting on cable, and thats why they are building software to upgrade cable DVR's. They have many licensing agreements in place for this now... Their biggest problem right now is that they are having issues with the software. They may be loosing subs right now, but they won't loose all Directv subs for a very long time. There are still UltimateTV users out there.... There was a large exodus, but I have a feeling that is about to subside once most HD Tivos have been replaced....


----------



## jacmyoung

Again, you can have your opinions and I can have mine, we don't have to agree. I will stick to mine until I am proven wrong, and that time is near for most of the arguments here anyway.

I will be the first to come and say I am wrong when the outcome proves me wrong.


----------



## bobcamp1

Greg Bimson said:


> No. The Court of Appeals would examine if the District Court judge or magistrate misapplied law. Even the Court of Appeals stated they'd have no problem giving TiVo a guilty decision on the hardware claims if the doctrine of equivalents issue and the jury instructions regarding those were addressed. So if a summary judgment were granted back at District Court, as long as there wasn't a factual error or misapplication of law, then it would most likely stand.


But how does a judge address the fact that the jury should have been given different, more strict instructions? (I'm not being sarcastic, I honestly don't know). He can't recall the old jury. He doesn't have a time machine. Does he just guess that the new instructions wouldn't have influenced the jury?


----------



## jacmyoung

bobcamp1 said:


> But how does a judge address the fact that the jury should have been given different, more strict instructions? (I'm not being sarcastic, I honestly don't know). He can't recall the old jury. He doesn't have a time machine. Does he just guess that the new instructions wouldn't have influenced the jury?


That is the basic difference in interpretations of the law between me and Greg and a few others. If you read the appeals court opinions carefully, they basically put in a condition for upholding the hardware verdict on equivalents, that is the jury must produce that verdict. It wasn't that obvious for apparent reason, they don't want to give Judge Folsom hard time. But it is there if you can be objective enough to read it.


----------



## Greg Bimson

The patent infringement case Finisar won against DirecTV was overturned at the Court of Appeals today. The Court of Appeals stated, paraphrasing, that a key element of the claim language was not addressed in the courts' instructions. According to the article, the Court of Appeals has demanded a retrial.

In the TiVo v. Echostar case, the Court of Appeals did not demand a retrial of the claims, but left the judge to make the next determination. Since there is no need for a jury to rule at any time, it is possible this judge could rule on the hardware claims.


BobCamp1 said:


> He can't recall the old jury. He doesn't have a time machine. Does he just guess that the new instructions wouldn't have influenced the jury?


No, but he has in front of him the facts and the transcripts of the case, and can in fact be the jury. Remember, at any time, a judge can issue a verdict, even one that is counter to what a jury renders.


----------



## jacmyoung

Greg Bimson said:


> .. Remember, at any time, a judge can issue a verdict, even one that is counter to what a jury renders.


Yes but such judge's decision must withstand very high standard of proof. In this particular case the appeals court already hinted that they could not uphold such decision (had the judge produced one) even if substantial evidence supported it.


----------



## Greg Bimson

jacmyoung said:


> Yes but such judge's decision must withstand very high standard of proof. In this particular case the appeals court already hinted that they could not uphold such decision (had the judge produced one) even if substantial evidence supported it.


But only because the Court of Appeals was not briefed on this possibility, neither by TiVo nor DISH/SATS. Which of course means if the Court of Appeals had been briefed on this scenario, they'd have issued a ruling on the hardware claims. So , instead of overturning the hardware claims and sending them to be retried, that was left for the District Court to decide.

Although there is a higher burden of proof to rule for summary judgment, the bar was lowered by being able to use the doctrine of equivalents instead of literal infringement.


----------



## RA's4Days

James Long said:


> The 200k exempt machines are from BEFORE Tivo labeled their devices properly with "patent pending" or the patent numbers. I don't believe they are allowed to pick "any 200k" machines to fit that quota.
> 
> It's going to be a battle ... which is why I keep saying "armed marshals with guns" ... the only way that DISH would ever turn off the DVRs. Even if the injunction was restated today by the district court and the appropriate 30 day deadline set it means nothing to DISH. They firmly believe that their DVRs do not infringe. They will stand by that belief until a court rules their way or ... armed marshals with guns show up and force the software engineers to send the needed command/software.


 It most likely will be either marshals, or pissed off, starving Non-In House Techs. Whatever the case without DVR then dish really has nothing else to offer besides dual rec's. But from the post I saw,most of the rec's ,aside from the 625, and 722's, are legacy anyways right? The way the court order looked, its almost as if tivo takes it all, either way TIVO STILL SUCKS. Sorry fear of losing my job, has me spining in circles.


----------



## jacmyoung

Greg Bimson said:


> But only because the Court of Appeals was not briefed on this possibility, neither by TiVo nor DISH/SATS. Which of course means if the Court of Appeals had been briefed on this scenario, they'd have issued a ruling on the hardware claims. So , instead of overturning the hardware claims and sending them to be retried, that was left for the District Court to decide.
> 
> Although there is a higher burden of proof to rule for summary judgment, the bar was lowered by being able to use the doctrine of equivalents instead of literal infringement.


It is fairly easy to find out whose interpretation is right, all we have to do is wait and see.


----------



## HobbyTalk

Slightly off topic.... does anyone have any idea of how many lawsuits have E* had filed against it?


----------



## Curtis52

The appeals court issued their mandate today. The case is now back in the circuit court. The injunction is in force.


----------



## James Long

... and my DVR is recording.


----------



## spear61

James Long said:


> ... and my DVR is recording.


Amen !


----------



## Tom Robertson

Takes time to call up Walker, Texas Ranger... 

(and arrange for the HD camera crews to be there when it all comes down.)


----------



## Curtis52

James Long said:


> The 200k exempt machines are from BEFORE Tivo labeled their devices properly with "patent pending" or the patent numbers.


No.

Lost profits were awarded for 192,708 units. Royalties were awarded for the rest.


----------



## James Long

Curtis52 said:


> No.
> 
> Lost profits were awarded for 192,708 units. Royalties were awarded for the rest.


It took you a week for that snappy answer? 

It isn't a no. The (rounded) 200,000 units we were discussing at the time of my post are in that category for the reason I stated.


----------



## Curtis52

James Long said:


> It isn't a no. The (rounded) 200,000 units we were discussing at the time of my post are in that category for the reason I stated.


This is what was being discussed:

"*Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.*"

The 192,708 units are excluded from the injunction because lost profits were awarded to TiVo on these units. It has nothing to do with "patent pending" markings being absent or present.


----------



## James Long

How were the 192,708 units identified for that count? Why that number?
I'll be here when you've done with your research.


----------



## Curtis52

James Long said:


> How were the 192,708 units identified for that count? Why that number?
> I'll be here when you've done with your research.


You made the first assertion. You first.

I don't need to do any research.


----------



## James Long

Curtis52 said:


> You made the first assertion. You first.
> 
> I don't need to do any research.


Since you pulled up a post from a week ago I hope you'll wait a week for the answer. Gotta go back into the archives from when this was discussed last year.


----------



## Curtis52

James Long said:


> Since you pulled up a post from a week ago I hope you'll wait a week for the answer. Gotta go back into the archives from when this was discussed last year.


"The jury accepted Dr. Ugone's damages estimate, awarding TiVo $73.99 million in damages: $32.66 million in lost profits from lost sales of its set-top boxes and an additional $41.33 million that EchoStar should have paid in royalties relating to the sale of more than four million of their DVR devices. "

"Third, to disable the DVR functionality in all but 192,708 of the infringing units placed with customers. TiVo was awarded lost profits on 192,708 units. As to the other 4,179,253 units, TiVo was awarded a reasonable royalty through the end of March 2006.


----------



## James Long

Non responsive ... the question wasn't "Can you repeat your claim?" it was "How were the 192,708 units identified for that count? Why that number?"

Are you saying the jury pulled the number out of their collective butts? I recall the number being based on units labeled patent pending or not. It has been at least eight months. Find the rationale for the number, if you want to help.


----------



## Curtis52

"Retained by Irell & Manella and McKool Smith, counsel for TiVo, Dr. Ugone assessed the economic impact of EchoStar's patent infringement. He developed a lost profits model that used a market penetration rate analysis to determine the portion of EchoStar's DVR sales that would have gone to TiVo had EchoStar not infringed the patent."


----------



## James Long

I assume you have a source? And that this source links that random quote to the figure?
I can type unsourced paragraphs too, if you want.


----------



## Curtis52

James Long said:


> I assume you have a source? And that this source links that random quote to the figure?
> I can type unsourced paragraphs too, if you want.


Google is your friend.


----------



## jacmyoung

Curtis52 said:


> "Retained by Irell & Manella and McKool Smith, counsel for TiVo, Dr. Ugone assessed the economic impact of EchoStar's patent infringement. He developed a lost profits model that used a market penetration rate analysis to determine the portion of EchoStar's DVR sales that would have gone to TiVo had EchoStar not infringed the patent."


I agree with James you continued not to answer his question, why the 200k units were awarded lost profits but not royalty, yet the other 4 million plus were awarded royalties?


----------



## Tom Robertson

Curtis52 said:


> Google is your friend.


Indeed, but when you've already done the google, providing links to your sources is considered much better form than forcing everyone else to repeat your google work...


----------



## Curtis52

Tom Robertson said:


> Indeed, but when you've already done the google, providing links to your sources is considered much better form than forcing everyone else to repeat your google work...


That would be true if I had it handy.


----------



## Tom Robertson

Curtis52 said:


> That would be true if I had it handy.


:lol: So we're to understand that you typed those quotes verbatim from memory--without remembering the source? Wow 

Browser history is also a friend...


----------



## jacmyoung

The selfish part of me really am interested in seeing if my 625 DVR functions can be turned off soon. When I switched from E* to D* several months ago I kept one 625 to continue to get some international channels, nothing else. I am hoping E* is forced to turn the DVR functions off on my 625 so I can call and ask to be upgraded to a 722 for free and avoid paying the $7 "HD fee" while I use it to get my OTA HD locals.


----------



## Curtis52

Tom Robertson said:


> Browser history is also a friend...


My browser history only goes back about a week. Not several months.


----------



## Tom Robertson

BTW, Curtis52,

Whilst I definitely have made light of your recent posting style, I think I understand where you are heading. I don't know enough yet to know if you are correct (in other words your arguments aren't yet compelling to this juror), but I think I see the framework of your strategy. Perhaps a bit more foundation then a good closing to wrap it all together?

Cheers,
Tom


----------



## spear61

You all are probably are aware of the Federal Pacer web site but I thought I'd provide the link in case someone really wants to see all the details from Tivo/Dish or any other action of the Federal courts throughout the nation. It's a subscription service, easy to use, and not too expensive. Your account can be paid by credit card and you are billed by search and pages.

http://pacer.psc.uscourts.gov/


----------



## James Long

Riddle me this (while I continue my week long search) ...

The jury ruled Tivo was due royalty damages on 4,179,253 receivers.
These are receivers that E* sold or placed into homes that infringed on the patent?

The jury ruled Tivo was due lost profits damages on 192,708 receivers.
These are receivers that Tivo did not sell because E* sold/placed infringing receivers?

Why would the injunction allow DISH to continue to infringe on the patent on _ANY_ 192,708 receivers?

PS: Thanks spear61 for the Pacer link. I've used it before, primarily for the distants case (although I did have a few Pacer documents from this case on my hard drive from last year). The government made a little money off of me tonight. 8¢ per page adds up, especially when you're paying for index pages showing several years of history when all you care about is recent filings. It cost $1.44 for the list of documents in the Tivo case. Not too bad if you're billing it as a lawyer or to a firm ... but it adds up!


----------



## Curtis52

James Long said:


> Why would the injunction allow DISH to continue to infringe on the patent on _ANY_ 192,708 receivers?


TiVo was in the habit of selling lifetime subscriptions with DVRs.


----------



## spear61

Looks like my 942 is one of the 192708 that are safe if I can trust the Dish/Dealer letter???


----------



## jacmyoung

Barring any surprises, am I correct that in 30 days a contempt hearing will take place and that will be when DISH will pull out the new non-infringing software defense?

What else can happen in the next 30 days? More damages, broader injunction? Summary judgment request on hardware claim? Or those will have to be done after the 30 days?


----------



## jacmyoung

spear61 said:


> Looks like my 942 is one of the 192708 that are safe if I can trust the Dish/Dealer letter???


Sounds like DISH is trying to pull some other tricks. I thought that 200k are old Dishplayers. Certainly the number of active Dishplayers are very few by now, so Dish can argue a total of 200k currently active DVR's among all active DVR's are not under injunction.

Such argument obvious will not stand in the end but it again buys time?


----------



## Curtis52

spear61 said:


> Looks like my 942 is one of the 192708 that are safe if I can trust the Dish/Dealer letter???


The 192,708 number is not associated with any particular model number as far as the judge's order is concerned. Dish can do it any way they want to.

"Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber."


----------



## jacmyoung

Curtis52 said:


> The 192,708 number is not associated with any particular model number as far as the judge's order is concerned. Dish can do it any way they want to.
> 
> "Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber."


To me that may be another mistake the judge made by not specifying the models included in that 192,708 count.

If DISH simply sent the letters out to the 921/942 users, then it seemes logical, because replacing an SDDVR with a new re-branded SDDVR will be cheaper than replacing a 9xx HDDVR with a new VIP HDDVR.


----------



## jacmyoung

Now I am really confused, how long will those 192,708 units be allowed to operate? Forever even though they do infringe? Does that not create an argument against the injunction on technicality? That some of the infringing products are exempt, yet many of the SAME products are under injunction. I assume the 192,708 number depicts the estimated number of Dishplayers at the time of trial, or DVR's sold before Tivo actively used its patent. A more logical way to word the injunction should be then to exempt all DVR's sold prior to that timeline, up to 192,708 total. Because the judge should have thought about that number would decrease as time moved on.

Simply granting exemption for 192,708 units among all DVR's on that list seemed less than thoughtful, just like when he instructed the jury not to rule on equivalents if they ruled on literal infringement, which let DISH get away on the hardware claim. Even DISH must not have seen this coming.

That said, if what the spear61 letter is true, I begin to think DISH lacks a game plan too. I did not think the damages will have much impact on DISH and still do not. But replacing all impacted DVR's will have a significant impact on DISH's bottomline. And the fact that they continued to sell 625's, you would think they must have high confidence that their products no longer infringe.

But that letter points to a complete lack of such confidence.

Despite that, if I were DISH, I would ask for a stay of the injunction based on "newly encountered difficulties", that is how to determine who is to be part of that 192,708 chosen lucky ones? I mean what is the absolute fair way of figuring it out? Based on genders? On ethnicity? On income level? Judge you tell me. Because I can't figure it out, no matter what I do it will be unfair for those who will be impacted, because there will be 192,708 that will not be impacted, even though those 192,708 have nothing special. The justice must be served fairly so we ask the judge to formulate a fair plan for implementation, while such plan is formulated the injunction should be stayed.

In fact I think I can even ask the injunction to be thrown out if I can prove such injunction can not be carried out in a way that is just and fair.


----------



## Herdfan

Curtis52 said:


> TiVo was in the habit of selling lifetime subscriptions with DVRs.





jacmyoung said:


> Now I am really confused, how long will those 192,708 units be allowed to operate? Forever even though they do infringe?


That seems to be the best explanation. If the court determined that TiVo would have sold lifetime subs on X% of the DVR's had DISH not infringed, then the court could have awared a damamge amount to TiVo based on the lifetime subs they should have had.

Since they would have been lifetime units, they should be allowed to operate for the boxes lifetime just as a SA TiVo would have.


----------



## jacmyoung

Herdfan said:


> That seems to be the best explanation. If the court determined that TiVo would have sold lifetime subs on X% of the DVR's had DISH not infringed, then the court could have awared a damamge amount to TiVo based on the lifetime subs they should have had.
> 
> Since they would have been lifetime units, they should be allowed to operate for the boxes lifetime just as a SA TiVo would have.


Thank you for connecting the dots for me, that makes total sense.

In stead of sending that stupid letter to the 942 users saying they will be part of the 200k lucky ones, DISH should send out a letter to everyone of those DVR users, telling them their DVR's may lose functions due to a decision by the judge which DISH disagree, and as a result of the judge's decision, only selected few will be able to keep their DVR functions, and you may not be one of them because xxxx reasons. And if you do not agree, register a complaint ASAP and BTW name that judge in your complaint too. In fact why dont you threaten a class action lawsuit. Now when the contempt hearing is on, DISH simply brings boxes of complaints to the appeals court, citing the potential for further substantial harm, not caused by the injunction itself, rather the way the injunction is worded, and BTW the court must face the same threat of complaint because it is the court that determined how the injunction should proceed, not DISH.

That should be enough evidence to convince the appeals court to at least stay the injunction pending further evaluation, should it not?


----------



## Greg Bimson

I don't normally do this, but this would be very important...

Attached here are two files DISH sent out yesterday. I saw these on Satelliteguys.us and becuase it directly relates to THIS THREAD that I include them here. From what I can see, these letters will be the basis of what DISH is going to do to fight the injunction.


----------



## Curtis52

Greg Bimson said:


> I don't normally do this, but this would be very important...
> 
> Attached here are two files DISH sent out yesterday. I saw these on Satelliteguys.us and becuase it directly relates to THIS THREAD that I include them here. From what I can see, these letters will be the basis of what DISH is going to do to fight the injunction.


Interesting stuff. Thanks. Time to pull up a lawn chair, break open a beer, and watch the fireworks.


----------



## Greg Bimson

For those of you that do not want to do the heavy reading, the first file appears to be from DISH to their vendors, explaining the injunction, then stating because they've changed their infringing software, they do not believe they are subject to the injunction. It is the second letter that is more damning...


> This is a clarification of the "Notice of Tivo Injunction" that was sent this morning. DVR
> models 501, 508, 510, 522, 625, 622, Homezone 622, and 722, have all received the redesigned software and can continue to be sold, installed and activated. With respect to those models, no further action is necessary on your part at this time. However, the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software. Because the injunction goes into effect today, any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field. 721, 921, 942 and Homezone 1022 models that are already installed and activated are not
> subject to the injunction and can continue to be used by customers.


DISH will not sell nor activate new 721, 921, 942 and Homezone 1022 models, because they are covered in the injunction. I'd guess those are part of the 193K receivers that DISH did not have to turn off. But because they didn't update the software, they cannot sell them. DISH is following the exact terms of the injunction here.

However, we now get the word that the 622 and 722 were more than likely using infringing software, simply because they had to be redesigned. No, there isn't an admission of guilt on the 622/722, but the fact that it is mentioned would simply lend creedence that those receivers also infringed. And because the only way to add those receivers is through a contempt of court proceeding had have them ruled as not colorably different, the contempt proceeding is now in TiVo's court.


----------



## Curtis52

A cursory review shows that Dish left out a few words:

"Each Defendant, its officers, agents, servants, employees and attorneys, *and those persons in active concert or participation with them* who receive actual notice hereof, are hereby restrained and enjoined, "

I guess they didn't want to frighten the dealers.


----------



## Curtis52

Greg Bimson said:


> I'd guess those are part of the 193K receivers that DISH did not have to turn off. But because they didn't update the software, they cannot sell them. DISH is following the exact terms of the injunction here.


The 193K have to be selected from units already in the possession of subscribers.


----------



## jacmyoung

First thank you for the links.

I did not interpret the same way you did Greg, which of course should not be a surprise to you

DISH simply stated that they have downloaded the new software to all DVR's that will be hit by the injunction, and they are confident that the new software claim will prevail.

They also picked a bunch of DVR's that are discontinued, and directed the dealers to make sure no more of such DVR's will be installed even if they are still somewhere in the dealers closets. And they have also calculated how many of those discontinued DVR's are out there that are active right now, and through their audit they knew they were within that 192,000 figure, so there is no need to even download the new software to those DVR's, they will not be impacted by the injunction anyway.

With that in mind I take back what I said about DISH, they are in fact fully confident that their new software no longer infringes. Of course as you said Greg, whether the court will buy that or not is another story. But DISH has continued to show its confidence in its new software.

And it is this confidence that led DISH to include the 722's in its statement. While not admitting to that they did open the door for Tivo to address the 622/722 models, but since DISH's confidence is so high they did not think it mattered, or if they figured out Tivo will ask for the 622/722 to be addressed anyway, then it makes no difference. Of course 622/722's used the same software as the other DVR's, no need to hide that. The important thing is they (in this case the 722's) no longer do, and that is what really matters.


----------



## Curtis52

It's going to be just like I predicted:

Link


----------



## Greg Bimson

jacmyoung said:


> With that in mind I take back what I said about DISH, they are in fact fully confident that their new software no longer infringes.


You and I will be playing the chicken and the egg game.

The injunction states the infringing receivers must be turned off. There was no exception, just turned off.

What would appear to be a valid claim, such as that in either the NTP v. RIMM (Blackberry case) or Verizon v. Vonage case, is that a workaround has been found. The difference here is that the workaround would have been in effect before the judge issued an injunction. *In both cases, the injunction had not been issued and enforced.*

In this case, the injunction has been issued and it is enforcable. One does not get to go back and say, "we've fixed the problem, so remove the injunction", unless that is in the terms of the injunction.

Although DISH/SATS may no longer have infringing software, it is indeed too late.

I simply only need to go back to the distants case. Once the injunction was enforced, DISH did shut down their distant network service. They also tried out a grey area of the law, by leasing one transponder to a company, and that company sold distants. Now, the contempt proceedings are at the Court of Appeals, a full 17 plus months after the injunction was enforced, because of the ruling on a third party, the lessee NPS. However, the injunction still stands and DISH is not offering distant network service.

In this case, DISH is *not* abiding by injunction, and there is no wording in the injunction that lets DISH out by making changes.

This one will be BRUTAL. You'd think someone would learn from their prior mistakes.


----------



## jacmyoung

Curtis52 said:


> It's going to be just like I predicted:
> 
> Link


Do you even realize that your predict is wrong? You predicted DISH will tell judge to get lost, that they will not comply and the injunction must be changed.

What you predicted above is entirely different than what the strategy DISH has just shown to us, what they will say to the judge is we have not implemented your order because we believe our DVR's are now more than colorably different, and here is our evidence for you your honor to consider...

You are already incorrect.


----------



## Greg Bimson

jacmyoung, the contempt proceeding hasn't even started yet.

But using the document, basically DISH/SATS did tell the judge and TiVo to get lost, by not complying with the injunction as written. The DVR functions are still working, and that is against the injunction.

DISH/SATS will have to walk into the courtroom, and state, "we have not implemented your order because we believe our DVR's are now more than colorably different, and here is our evidence for you your honor to consider..."

That is when the judge will tell DISH/SATS to go pound sand.


----------



## jacmyoung

Greg Bimson said:


> ...That is when the judge will tell DISH/SATS to go pound sand.


How about again we wait and see. I never pretend I am that judge, nor should you. Let's not speak for him, let him speak.


----------



## Greg Bimson

I'll make this simple:

Unless there is language in an injunction that allows for a benchmark to be met so the injunciton no longer applies, or an injunction is overturned, injunctions are not changed.

I'll state it. Curtis has had this right from day one. I would have if I'd realized that the injunction became active without anyone needing to sign it.


----------



## jacmyoung

Greg Bimson said:


> I'll make this simple:
> 
> Unless there is language in an injunction that allows for a benchmark to be met so the injunciton no longer applies, or an injunction is overturned, injunctions are not changed.
> 
> I'll state it. Curtis has had this right from day one. I would have if I'd realized that the injunction became active without anyone needing to sign it.


No the problem is if you read one of Curtis' posts, where how the contempt hearing works, is that DISH only needs to prove a "mere colorable difference" to be granted a contempt hearing, which we do not disagree will happen.

But DISH will have to convince the judge that "more than colorable difference" exists in order to move the case beyond the contempt hearing into a new hearing or even a new trial.

Apparently as far as we know right now DISH is confident they can convince the judge their infringing products are now more than colorably different and should be granted a new hearing, not to void the current injuction, rather a new hearing. That is the rule Curtis posted, rules are rules.

I will agree the judge can say no the injunction must be carried out, even if I will grant you a new hearing, but I don't know how much chance such ruling may standup to an appeal. It does sound unreasonable to me but I am no legal experts on that one.


----------



## Slamminc11

Personally, I think you two should just get a room!


----------



## Curtis52

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber."

"Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


----------



## Greg Bimson

jacmyoung said:


> No the problem is if you read one of Curtis' posts, where how the contempt hearing works, is that DISH only needs to prove a "mere colorable difference" to be granted a contempt hearing, which we do not disagree will happen.
> 
> But DISH will have to convince the judge that "more than colorable difference" exists in order to move the case beyond the contempt hearing into a new hearing or even a new trial.


It's another misread.

DISH/SATS doesn't want a contempt proceeding. DISH/SATS cannot start a contempt hearing in this case, only TiVo. The contempt proceeding is used to say that a party is not complying with the court's orders.

In a contempt proceeding, TiVo will state DISH/SATS is not complying with the order to shut-off DVR functions in certain models. TiVo will also need to request that the newer DVR's are also infringing models under the colorably different clause. That is where the points are confused.

The only relief would be gained on the 622 and 722. Not the listed receivers, which are supposed to have their DVR functions shut off.


----------



## jacmyoung

Greg Bimson said:


> It's another misread.
> 
> DISH/SATS doesn't want a contempt proceeding. DISH/SATS cannot start a contempt hearing in this case, only TiVo. The contempt proceeding is used to say that a party is not complying with the court's orders.
> 
> In a contempt proceeding, TiVo will state DISH/SATS is not complying with the order to shut-off DVR functions in certain models. TiVo will also need to request that the newer DVR's are also infringing models under the colorably different clause. That is where the points are confused.
> 
> The only relief would be gained on the 622 and 722. Not the listed receivers, which are supposed to have their DVR functions shut off.


Go back to read what Curtis posted about how the contempt hearing works, re-post it here if you like. You simply can not draw the conclusion above after you read that post of Curtis'.


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## Greg Bimson

How a contempt hearing works is your argument. DISH/SATS will not initiate a contempt hearing. Yet you are saying they will.


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## jacmyoung

Here it is:

Precedence:

"A contempt proceeding for violation of a patent infringement injunction will lie where the new and alleged offending device is merely 'colorably' different from the enjoined device or from the patent. In American Foundry & Mfg. Co. v. Josam Mfg. Co., supra, this Court held, 79 F.2d at 117:
10

'As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"

What it said was, a contempt hearing can take place if there is evidence of mere "colorable" difference, and when there is more than "colorable" difference, the trial must be moved out of the contempt hearing, meaning some sort of new hearing or other court proceeding must take place to trial such new evidence.

If DISH can not show "mere colorable difference" Tivo does not even have to ask for a contempt hearing, they can just ask the judge to order armed marshalls in.

But if DISH can show "mere colorable difference", Tivo must request a contempt hearing to move things forward. Of course during the contempt hearing DISH must convince the judge the infringing products are more than colorably different, if they want the case moved out of the contempt hearing.

I will admit again my error in the terms I used, however it does not impact the outcome.


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## Curtis52

"A contempt proceeding for violation of a patent infringement injunction will lie where the *new* and alleged offending device is merely 'colorably' different from the *enjoined device* or from the patent."

Enjoined devices: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


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## Herdfan

> "Each Defendant, its *officers, agents, servants, employees and attorneys*, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, "


So not only is DISH as a company enjoined, the injunction specifically mentions the officers and employees. So if Charlie or some other executive refuses to shut off the DVR's, then the judge has full power to lock them up until they comply.


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## Herdfan

Greg Bimson said:


> TiVo will also need to request that the newer DVR's are also infringing models under the colorably different clause. That is where the points are confused.


The current injunction is damaging enough. No need to muddy the water.


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## Greg Bimson

> As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings.Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.


Paraphrased to apply to this case:

Not every DVR DISH/SATS will manufacture can be tried in a contempt proceeding. Only DVR's 'colorably different' from infringing DVR's can be sent to a trial. New DVR's may be found to be infringements, but if the new DVR's are more than colorably different, it cannot be found infringing in a contempt proceeding. Therefore, when infringement is presented at a contempt proceeding, the court needs to understand if it can possibly be entertained in the contempt proceeding, or in a new trial.


jacmyoung said:


> What it said was, a contempt hearing can take place if there is evidence of mere "colorable" difference, and when there is more than "colorable" difference, the trial must be moved out of the contempt hearing, meaning some sort of new hearing or other court proceeding must take place to trial such new evidence.


Correct. This would apply to DVR's not listed in the injunction, such as the 622 and 722. However, this will not apply to the listed DVR's, as they are to have their DVR functions shut-off.


jacmyoung said:


> If DISH can not show "mere colorable difference" Tivo does not even have to ask for a contempt hearing, they can just ask the judge to order armed marshalls in.


DISH/SATS has not turned off any of the listed infringing DVR's. Therefore, the only way for TiVo to, "ask the judge to order armed marshalls in," is through a contempt proceeding.


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## Greg Bimson

Herdfan said:


> The current injunction is damaging enough. No need to muddy the water.


While I'd generally agree, at this point we were figuring a judgment in the neighborhood of $200 million, when accrued damages and interest were applied. This is without the newer flagship DVR in the totals, the one DISH has been installing for the past two years.

So let's say that TiVo wants another $100 million for past infringement on the 622/722. And because the infringement is from 2002 forward, let's say that TiVo wants a long-term licensing deal at almost $1 a box. Now we are tallking a $600 million licensing deal, with a rather large lump-sum payment to start.

Now, this infringement deal is quite a bit of money. Let's say TiVo, because of the fact they have to go to a contempt proceeding in order to get DISH's violations correct, then ask the judge for treble damages.

We are talking a LOT OF MONEY. If Curtis is right, and DISH stands to lose $240 million a month from the people that can only use their DVR's as doorstops, $1 billion is not quite out of the question for TiVo to ask from DISH to settle this thing.

The alternative for DISH will be staggering.


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## Herdfan

Greg,

All very valid points and can be part of any settlement negatiation. However, I think that TiVo needs to get any injunction enforced to to force DISH to negotiate in good faith. Until that happens, DISH is going to do nothing.

So if TiVo tries to get the judge to add the the newer models, and DISH finds a way to get the injunction stayed again, yes damages continue to accrue, but time continues to pass which could give DISH the time to either replace all the DVR's or convice a court that the new ones don't infringe.

The injunction they have, if enforced, is enough to make DISH come to the table and negotiate in good faith with TiVo setting most of the terms.


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## Greg Bimson

Herdfan said:


> The injunction they have, if enforced, is enough to make DISH come to the table and negotiate in good faith with TiVo setting most of the terms.


While I generally agree, how does one, "get any injunction enforced to force DISH[/SATS] to negotiate in good faith," when a contempt proceeding will likely result in large fines and possibly the involvement of the US Marshal Service to get the DVR's turned off?

I mean, we are talking line in the sand time here. When does DISH/SATS crawl back to TiVo? After TiVo successfully gets the listed infringing receivers turned off, or when DISH/SATS is heavily fined?

The point being, DISH/SATS appears to have that line in the sand, and no one knows for certain where their breaking point will be. The real reality is that DISH/SATS does not want to pay. The question is how far will they put customers at risk again.

One would think, as cut and dried the injunction is, that DISH/SATS would not have let it get this far, because nothing but bad will come out of this.


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## Presence

OMG, are you two still going at it with your "I must get the last word!" mentality?


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## Curtis52

Yep. If I was TiVo, I would ask for a contempt hearing on the infringing devices on the list that have not been turned off and put off a hearing on the new devices until later.


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## spear61

Greg Bimson said:


> We are talking a LOT OF MONEY. If Curtis is right, and DISH stands to lose $240 million a month from the people that can only use their DVR's as doorstops, $1 billion is not quite out of the question for TiVo to ask from DISH to settle this thing.
> 
> The alternative for DISH will be staggering.


From the March 2008 10k

"Litigation expense. During the years ended December 31, 2007 and 2006, we recorded "Litigation expense" in the Tivo case of $34 million and $94 million, respectively. The $94 million reflects the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. The $34 million additional expense in 2007 represents the estimated cost of any software infringement prior to the implementation of the alternative technology, plus interest subsequent to the jury verdict. See Note 9 in the Notes to our Consolidated Financial Statements in Item 15 of this Annual Report on Form 10-K for further discussion."


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## Greg Bimson

Presence said:


> OMG, are you two still going at it with your "I must get the last word!" mentality?


No. Just pointing out the fact that if there was any negotiation ongoing, that TiVo's number and DISH/SATS's number must be miles apart. If fined in a contempt proceeding, DISH/SATS still may not bother shutting down the DVR functions on the listed devices. After all, they haven't bothered to comply with the injunction, and they've somehow spent a few million dollars, believing they've worked around the patent.


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## jacmyoung

Curtis52 said:


> "A contempt proceeding for violation of a patent infringement injunction will lie where the *new* and alleged offending device is merely 'colorably' different from the *enjoined device* or from the patent."
> 
> Enjoined devices: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


Here lies the difference in interpretation between me and you two.

My interpretation of the word "new" is the DVR's on that list but now DISH claims to be using the "new" software. Because let us for argument sake assume the DVR's on the list are all DISH has, they do not have any other DVR's period.

Now are you saying there is then no such thing as contempt hearing? because there is no "new" devices involved anymore.

So to apply the case from above one must conclude the word "new" is at least in part referring to the infringing DVR's on that list but now DISH claims to have "new" and non-infringing software.

Otherwise a contempt hearing is of no meaning if it can only cover "new" devices not currently under injunction.

With that in mind if you read it again you will see my point.


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## jacmyoung

spear61 said:


> From the March 2008 10k
> 
> "Litigation expense. During the years ended December 31, 2007 and 2006, we recorded "Litigation expense" in the Tivo case of $34 million and $94 million, respectively. The $94 million reflects the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. The $34 million additional expense in 2007 represents the estimated cost of any software infringement prior to the implementation of the alternative technology, plus interest subsequent to the jury verdict. See Note 9 in the Notes to our Consolidated Financial Statements in Item 15 of this Annual Report on Form 10-K for further discussion."


Yes the jury had clearly defined how they came to the damages, so Tivo can not make unreasonable request such as asking for 1 billion fine. They can ask for additional royalties and fines based on the rules jury used. And the jury's rule is surprisingly lenient, if I understand correctly the 94 million is the royalties estimated for that 4 plus milion DVR's on the list, it comes to about $23/each, a very low number IMHO.


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## Greg Bimson

jacmyoung said:


> Enjoined devices: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


I understand your point. However, what does one call a DP-501 with new software? If it is still called a DP-501, it is to have its DVR capabilities turned off.


jacmyoung said:


> Yes the jury had clearly defined how they came to the damages, so Tivo can not make unreasonable request such as asking for 1 billion fine.


I was more or less talking about a licensing agreement. Specifically, where is the point where DISH/SATS will relent, and simply pay up via a patent licensing agreement? When the fines are too large? When armed marshalls are coming to shut down the DVR's?


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## Greg Bimson

jacmyoung said:


> My interpretation of the word "new" is the DVR's on that list but now DISH claims to be using the "new" software. Because let us for argument sake assume the DVR's on the list are all DISH has, they do not have any other DVR's period.
> 
> Now are you saying there is then no such thing as contempt hearing? because there is no "new" devices involved anymore.


A contempt proceeding is to force a party to comply with a court order.

DISH/SATS has an enforceable injunction against them. TiVo must start a contempt proceeding because DISH/SATS has not turned off the DVR's listed in the order.

For the simple sake, let's say that DISH did not update the software, nor did they turn off the DVR functions once the injunction became enforceable. The only way to get DISH/SATS to comply would be through a contempt proceeding. If DISH/SATS did turn off the DVR's in question, then there wouldn't be a need for a contempt proceeding on those DVR's.


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## Curtis52

Greg Bimson said:


> I understand your point. However, what does one call a DP-501 with new software? If it is still called a DP-501, it is to have its DVR capabilities turned off.


DP-501 etc. are still being sold according to Dish. There is no question that they are in contempt. Not even Dish is trying a model-number-change ruse.

"DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722, have all received the redesigned software and can continue to be sold, installed and activated." LOL


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## jacmyoung

Greg Bimson said:


> ...For the simple sake, let's say that DISH did not update the software, nor did they turn off the DVR functions once the injunction became enforceable. The only way to get DISH/SATS to comply would be through a contempt proceeding. If DISH/SATS did turn off the DVR's in question, then there wouldn't be a need for a contempt proceeding on those DVR's.


Yes but at the same time the law allows DISH the opportunity to prove to the judge that they indeed downloaded a new software, and the new software is indeed more than colorably different, so the case can be moved out of the contempt hearing into a new hearing. Now the new hearing will likely be handled by a new judge, and there is no gaurantee that after the new hearing the new software will be found non-infringing, but it may be found non-infringing, no one knows. One step at a time.

In terms of your inerpretation of the "new device" let me try it this way. Fortunately in this case the hardware issue is not part of it anymore, yes Tivo may resurrect it but let's assume they don't do it prior to the contempt hearing.

Now we have only the software issue at hand. The old software (old device) has been found infringing and upheld as such, so the injunction can take place. Now during the contempt hearing DISH will try to convince the judge that the new device (new software) is more than colorably different (not non-infringing, just more than colorably different) and if they succeed in doing so they will be granted a new hearing or even a new trial.


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## Herdfan

In theory, maybe that is the way it SHOULD work, but the current injunction is absolute. So unless the SCOTUS comes down with a stay, I don't think DISH can get the colorably different argument in front of another judge.


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## jacmyoung

Curtis52 said:


> DP-501 etc. are still being sold according to Dish. There is no question that they are in contempt. Not even Dish is trying a model-number-change ruse... LOL


Why should they if they can prove the new software is non-infringing?

Technically DISH is not in contempt yet, only after the 30-day passed and they still have not done anything then they will be in contempt, and a contempt hearing will then likely take place.


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## HiDefGator

jacmyoung said:


> And the jury's rule is surprisingly lenient, if I understand correctly the 94 million is the royalties estimated for that 4 plus milion DVR's on the list, it comes to about $23/each, a very low number IMHO.


You think $23 a box for a one time patent license fee is very low? I would guess that on most consumer electronics the sum total of all patent license fees paid is far less than $1 per box.

I think you might be confusing a patent license fee with the subscription fee normally paid to Tivo for their software, updates, and support.


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## jacmyoung

Herdfan said:


> In theory, maybe that is the way it SHOULD work, but the current injunction is absolute. So unless the SCOTUS comes down with a stay, I don't think DISH can get the colorably different argument in front of another judge.


No in front of a new judge the argument will not be "colorable difference" rather whether the new device is non-infringing or not, which obviously will carry a higher standard of proof by DISH.

But your point of the injuction being absolute is valid. I am no expert so I don't know, I said earlier the judge may grant a new hearing on the new software and still rule the injunction must take place while the new hearing is under way.

Though reading from the Curtis' posts above it did not appear the judge may do so.


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## jacmyoung

HiDefGator said:


> You think $23 a box for a one time patent license fee is very low? I would guess that on most consumer electronics the sum total of all patent license fees paid is far less than $1 per box.
> 
> I think you might be confusing a patent license fee with the subscription fee normally paid to Tivo for their software, updates, and support.


Good point.


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## Greg Bimson

jacmyoung said:


> Yes but at the same time the law allows DISH the opportunity to prove to the judge that they indeed downloaded a new software, and the new software is indeed more than colorably different, so the case can be moved out of the contempt hearing into a new hearing.
> 
> [...]
> 
> Technically DISH is not in contempt yet, only after the 30-day passed and they still have not done anything then they will be in contempt, and a contempt hearing will then likely take place.


Ouch. A complete misunderstanding.

It would be possible to argue that the new software is not infringing if the injunction has not taken effect. So in the Blackberry and the Vonage cases, proposed injunctions were not in effect when the sides came to a settlement. In both cases, the loser wanted to avoid the injunction to shut-off service, so they settled.

In this case the injunction is live. There is no 30 day period. That was over back in 2006. In the letters I copied and posted here, DISH even states the injunction is in effect.

No offense jacmyoung, but you seem to misunderstand that the order to shut down the listed DVR's is active and enforceable NOW. DISH/SATS does not get to present new evidence; a contempt hearing is to determine if a party has not followed the instructions of an injunction. In this case, DISH/SATS has not cut off any of the DVR's listed. They will not be able to present those facts in a hearing.

That is where I was mistaken ages ago. One presents their arguments about a work-around prior to an injunction, not after an injunction is in force.


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## Herdfan

HiDefGator said:


> You think $23 a box for a one time patent license fee is very low? I would guess that on most consumer electronics the sum total of all patent license fees paid is far less than $1 per box.
> 
> I think you might be confusing a patent license fee with the subscription fee normally paid to Tivo for their software, updates, and support.


But in this case, since DISH infringed (See *), the court ruled that TiVo is entitled to a calculated amount of subscription revenue that it lost as a result of the infringement. That amount continues to accrue.

* While there have been some disagreements over how the court will handle certain issues, I do find it strange that no one seems to argue that DISH infringed on TiVo's patents.


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## James Long

Greg Bimson said:


> One presents their arguments about a work-around prior to an injunction, not after an injunction is in force.


Evidently not, since (as I predicted) DISH is not following that path. They have done exactly what I expected them to do. They have accepted the injunction, followed it, and now sell and service DVRs that do not infringe.

Want to prove that DISH's 2007 "Media Switch" free code (patent pending) for DVRs does not infringe? See you in court.

It really doesn't matter if it goes back as a "contempt of court" hearing in the current case or needs to start over as a new suit against the new software (taking another four years to work through the system?). DISH's current DVRs remain active and they are _not_ going to shut them off.



Herdfan said:


> * While there have been some disagreements over how the court will handle certain issues, I do find it strange that no one seems to argue that DISH infringed on TiVo's patents.


We have a jury verdict to help us on the actual infringement issue ... although because of an error in instructing the jury the hardware claims have been reversed. But the past infringement isn't at issue. It is what happens next that fills the server with speculation.


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## jacmyoung

Greg Bimson said:


> Ouch. A complete misunderstanding.
> 
> It would be possible to argue that the new software is not infringing if the injunction has not taken effect. So in the Blackberry and the Vonage cases, proposed injunctions were not in effect when the sides came to a settlement. In both cases, the loser wanted to avoid the injunction to shut-off service, so they settled.
> 
> In this case the injunction is live. There is no 30 day period. That was over back in 2006. In the letters I copied and posted here, DISH even states the injunction is in effect.
> 
> No offense jacmyoung, but you seem to misunderstand that the order to shut down the listed DVR's is active and enforceable NOW. DISH/SATS does not get to present new evidence; a contempt hearing is to determine if a party has not followed the instructions of an injunction. In this case, DISH/SATS has not cut off any of the DVR's listed. They will not be able to present those facts in a hearing.
> 
> That is where I was mistaken ages ago. One presents their arguments about a work-around prior to an injunction, not after an injunction is in force.


The problem with your continuing to use Blackberry's case is that they are different, they settled, DISH has not. So you can not use that as your precedence because you don't know what would have happened had they not settled.

Now apparently you refused to read Curtis's post in regard to how a contempt hearing in a patent infringement should be conducted. If you simply read it you would understand that the offender does indeed have the right to present to the judge a mere colorable difference argument when resisting an injunction, and if the other side disagree, they may ask judge for a contempt of court hearing, and during such hearing the offender has the right to prove their "new device" is indeed more than colorably different, and if they succeed in doing so the judge must allow a new hearing on the new device's non-infringing claim.

The above procedures are stated in that paragraph Curtis posted, only if you care to read it. Now unless that post of Curtis is wrong, or I completely misunderstood that post, then you may be right.

But you have yet pointed out where I was wrong specific in my interpretion of that quote above regarding a contempt hearing in a patent infringing case, all you have said so far is what you believed. Please give me a case to prove your belief, I have one from Curtis, what is yours? Blackberry case is not appropriate, they never went passed the injunction phase, we did.


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## jacmyoung

Greg Bimson said:


> ...No offense jacmyoung, but you seem to misunderstand that the order to shut down the listed DVR's is active and enforceable NOW. DISH/SATS does not get to present new evidence; a contempt hearing is to determine if a party has not followed the instructions of an injunction. In this case, DISH/SATS has not cut off any of the DVR's listed. They will not be able to present those facts in a hearing....


I am quoting this only to demonstrate why you are wrong. Because if a contempt hearing is merely to determine if DISH has followed the injunction, then such hearing is useless, becasue there is no dispute DISH has not followed the injunction, the judge could impose additional panelties without a hearing if you were correct.

But the reason there is a hearing is because during a hearing both sides are allowed to make arguments. That is what a hearing is about. If it is a one way street, it will not be called a hearing, rather a sentencing proceeding or something similar.

In fact I remember a patent case in which company A was found infringing company B's patent by selling a similar product protected by B's patent. A permanent injuction was ordered by the judge. Later B filed a contempt of court complaint accusing A of selling a similar product, only with a different label.

As I recall the judge opened a contempt of court hearing, and during that hearing experts were brought in to testify, and at the end of the hearing the judge decided that the new product sold by A was essentially the same product under injunction, only a different label. As a result the judge placed a new permanent injunction on the new product, in addtion he ordered A to pay some fine and B's legal fees incurred during the contempt of court hearing.

So you see during the contempt of court hearing both sides were allowed to testify and make aruguments. Had the new product been proven to be more than colorably different than the initial infringing product under injunction, the judge would have ordered a separate hearing to determine if the new product was in fact still infringing or not. And my understanding is if it could be proven the new product no longer infringed, then there would be no reason why A could not sell that new product.


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## peak_reception

jacmyoung to Greg Bimson:


> Now apparently you refused to read Curtis's post in regard to how a contempt hearing in a patent infringement should be conducted. If you simply read it you would understand that the offender does indeed have the right to present to the judge a mere colorable difference argument when resisting an injunction


No, a complete misreading. "Mere colorable difference" does *nothing at all* for DISH/SATS. The standard for further litigation is *more than* colorably different. And that only applies to devices not already listed in the injunction.

From the citation of Curtis' post [post #312 as cited] as to how a contempt hearing works:


> As will be hereinafter shown, *all subsequent constructions by a convicted infringer are not triable in contempt proceedings.* Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable.


 DISH/SATS is the "convicted infringer" and the infringing devices are explicitly listed. It seems pretty clear to me that patent work-around software falls squarely into the category of "subsequent constructions" which are not triable in a contempt hearing. So GB is correct in saying that


> the order to shut down the listed DVR's is active and enforceable NOW. DISH/SATS does not get to present new evidence; a contempt hearing is to determine if a party has not followed the instructions of an injunction. In this case, DISH/SATS has not cut off any of the DVR's listed. They will not be able to present those facts in a hearing.


 The contempt hearing citation continues:


> Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding.


 And that is where further litigation may occur for more potentially infringing devices *not* listed in the injunction.


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## peak_reception

James Long said:


> Evidently not, since (as I predicted) DISH is not following that path. They have done exactly what I expected them to do. They have accepted the injunction, followed it, and now sell and service DVRs that do not infringe.


No. They've acknowledged the injunction, defied the injunction, and now?? *May or may not still infringe* regarding "new constructions" (i.e. the workaround software). But the present injunction stands in force, uncomplied with -- a very dangerous place to be for both DISH and its customers.



> Want to prove that DISH's 2007 "Media Switch" free code (patent pending) for DVRs does not infringe? See you in court.


 Tivo may well take them up on that challenge but you're right that it would require new litigation.



> It really doesn't matter if it goes back as a "contempt of court" hearing in the current case or needs to start over as a new suit against the new software (taking another four years to work through the system?).


 I would think there's a huge difference. If it stays in a contempt of court hearing then that means the judge deemed such software changes to be "merely colorable difference" instead of "more than colorable difference" and thereby subject to his final ruling which in all likelihood would find DISH in willful contempt (not sure what the legal terminology would be) . New litigation would mean that the judge could not dismiss DISH's claim of more than colorable difference. However, all the above regards "new construction" (new software) and does not affect the devices listed in the injunction even if DISH's workaround _is_ more than colorable now.



> DISH's current DVRs remain active and they are _not_ going to shut them off.


 We'll see. As someone said, now the fireworks begin.



> We have a jury verdict to help us on the actual infringement issue ... although because of an error in instructing the jury the hardware claims have been reversed. But the past infringement isn't at issue. It is what happens next that fills the server with speculation.


Past infringement IS the issue. DISH is now a "convicted infringer" and in danger of severe penalties because of it.
Past and present infringement are both at issue.


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## James Long

peak_reception said:


> No. They've acknowledged the injunction, defied the injunction, and now??


Whether or not DISH is defying the injunction is up to the judge to decide. DISH has acknowledged the injunction ... but it is only opinion (probably shared by Tivo) that they have defied it.


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## JohnH

Seems like the Judge could say the penalty for infringing is you have to shut them off regardless to whether they infringe now or not.


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## jacmyoung

peak_reception said:


> ... It seems pretty clear to me that patent work-around software falls squarely into the category of "subsequent constructions" which are not triable in a contempt hearing. So GB is correct in saying that The contempt hearing citation continues: And that is where further litigation may occur for more potentially infringing devices *not* listed in the injunction.


I think we are making progress already.

Now with regard to the "new constructions" you are absolutely correct they are not triable by the contempt hearing, but you are incorrect as Greg that the "new construction" pertains only to the DVR's not on the list.

No the "new construction" in this case relates to all DVR's on that list or not, what is new is that they are operating under a new software, that is what the new construction is. Yes such new construction will not be triable in that contempt hearing. The purpose of that contempt hearing will be to determine if such new construction are more than colorably different or not, if the answer is no, the case is pretty much over, but if the answer is yes, then the judge must order a new hearing or a new trial to determine if the new construction no longer infringes or not, because the contempt hearing can not try that.


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## jacmyoung

JohnH said:


> Seems like the Judge could say the penalty for infringing is you have to shut them off regardless to whether they infringe now or not.


But it is not prescribed in judge's ruling that such will be used against DISH. I think if the judge wants to he could modify the injunction to do that, but any modification IMO can be appealed, and the fact the hardware claim has been reversed, the justification for such harsh modfication is hardly there.


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## jacmyoung

Here is what DISH will say during the contempt hearing:

1) We have stopped selling any DVR's that still use the old software;
2) We have ensured the ones that still use the old software are within the 192,000 units you prescribed;
3) We have ensured all our other DVR's are using our new software that is more than colorably different compared to the old software;
4) So yes we have followed your injunction order, and here is the evidence needed to prove it.

Tivo will argue:

1) Who cares;
2) Who cares;
3) DISH's new software is no more than colorably different;
4) Here is our evidence, and we ask the judge to expand the injunction to cover all DISH's DVR's.

Now to prove the new software is more than colorably different IMO is not extremely difficult. I know some of you completely disagree. But "colorably different" means to me is there is mere difference in appearance, not substance.

In this case when DISH hands over the new software code to the judge, I am sure DISH's experts will testify that the new code is completely different not only in its appearance, meaning it must look different in lauguage or commands/instructions used, but also it is different in substance such as those commands/instructions have different purposes and ask the hardware to do different things.

I am not a code programmer but have taken classes years ago, it is not difficult to make a code look more than colorably diffrent than another one believe me. And that is all DISH has to prove, they don't even have to prove the new code no longer infringes, just more than colorably different, during the contempt hearing.


----------



## Curtis52

Here is the patent claim Dish infringed. I wonder which part Dish says they've worked around.

"31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:

providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;

providing a source object, wherein said source object extracts video and audio data from said physical data source;

providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;

wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;

wherein said source object is automatically flow controlled by said transform object;

providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;

wherein said decoder converts said streams into display signals and sends said signals to a display;

wherein said sink object is automatically flow controlled by said transform object;

providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and

wherein said control object sends flow command events to said source, transform, and sink objects."


----------



## BNUMM

Link to Echostar patent Application.
http://appft1.uspto.gov/netacgi/nph...ND&d=PG01&s1=echostar&OS=echostar&RS=echostar

For anyone who is interested.

I also have a question. Do Rules of Evidence allow Patent Applications to be used as evidence?


----------



## jacmyoung

Let's not get ourselves too far ahead, we are not even at the point of whether the new DISH code is still infringing or not, rather if the new code is more than colorably different than the old one. Which as I said earlier is not a hard thing to do.

Now one thing seems clear, sparks did not fly, Tivo did not ask the judge to produce a summary judgment on the hardware claim, and the judge did not try to add any new DVR's on to the list.

He simply quietly let the injunction stand as is, no modifications. We just have to wait out the next 30 days, then see how things will move forward if and when there is a contempt hearing.


----------



## Curtis52

BNUMM said:


> Link to Echostar patent Application.
> Do Rules of Evidence allow Patent Applications to be used as evidence?[/QUOTE]Evidence of what?


----------



## peak_reception

> Whether or not DISH is defying the injunction is up to the judge to decide.--James Long


That's true, you've got me there. Of course the same holds true for your claim that they (DISH) have "followed" the injunction.

Too beautiful a day outside to reply to anything else for now.


----------



## tito79

Dvr functionality has been turned off for lots of models stay tune for more info .


----------



## inkahauts

Ah, when did that happen?


----------



## scooper

tito79 said:


> Dvr functionality has been turned off for lots of models stay tune for more info .


I don't put much credibility in a new single post user...


----------



## inkahauts

scooper said:


> I don't put much credibility in a new single post user...


neither do I, which is why I asked him to start clarifying and giving details... I would think there would be a bit more action in these forums if that had really happened, and also, why would they do it on a Sunday during prime time...


----------



## scooper

Any bets that he's a "one post troll" ?


----------



## BNUMM

Curtis52 said:


> Evidence of what?


Evidence for anything. For example, could Dish use the Patent Application as evidence that their DVRs are no longer infringing.


----------



## Curtis52

BNUMM said:


> Evidence for anything. For example, could Dish use the Patent Application as evidence that their DVRs are no longer infringing.


Well, it isn't evidence that they've installed it or even whether it would work so I don't see how it would help them any. It certainly isn't evidence they don't infringe. The patent is all about doing away with the media switch and indexing. Those things aren't even mentioned in the claim Dish infringed.


----------



## BNUMM

Thanks for your quick response. I guess everything is just a waiting game for now.


----------



## Richard King

I'm certain that if Michael's brother Tito were correct that we would have seen many postings here by now.


----------



## gully_foyle

HiDefGator said:


> You think $23 a box for a one time patent license fee is very low? I would guess that on most consumer electronics the sum total of all patent license fees paid is far less than $1 per box.


Yes, but normally they say "please." It is really in DiSH's (and everyone's) interest that they come to terms with TiVo. They're playing a dangerous game, and it's really not clear why.


----------



## James Long

Tivo was awarded $32,663,906 for the 192,708 units that they did not sell because of E*'s infringement. Basically $169.50 per unit.

Tivo was also awarded $41,328,058 for the 4,179,213 units that E* sold but did not pay royalties on. $9.89 per unit in royalties for units that Tivo would not have sold.


----------



## Curtis52

James Long said:


> Tivo was awarded $32,663,906 for the 192,708 units that they did not sell because of E*'s infringement. Basically $169.50 per unit.


Have you finished your homework on your "patent pending" assertion?


----------



## James Long

Curtis52 said:


> Have you finished your homework on your "patent pending" assertion?


As noted earlier, it took you a week to notice my post. You should give me a week to answer ... but bottom line, if you're going to be an ass about it I don't care. Do it yourself. There are much more important issues in this thread.


----------



## Curtis52

James Long said:


> As noted earlier, it took you a week to notice my post. You should give me a week to answer ... but bottom line, if you're going to be an ass about it I don't care. Do it yourself. There are much more important issues in this thread.


I've already done it. Let's try to be civil.


----------



## James Long

Then post your research, with links and not "go look it up" ... or get back to the TOPIC of this thread ... which is not "curtis beats up people".


----------



## Curtis52

James Long said:


> Then post your research, with links and not "go look it up" ... or get back to the TOPIC of this thread ... which is not "curtis beats up people".


When you posted the "$32,663,906 for the 192,708 units" message I was sure you had found the answer.


----------



## Curtis52

Appeals court ruling hits district court docket:

"04-21-08

MANDATE of USCA as to 809 Notice of Cross Appeal filed by TIVO Inc, 779 Notice of Appeal filed by "EchoStar defendants", 804 Notice of Appeal filed by "EchoStar defendants" JUDGMENT ON APPEAL. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Signed by Jan Horbaly, Clerk for Federal Circuit on 4/18/08. ISSUED AS MANDATE: (mpv, ) Modified on 4/21/2008 (mpv, ). (Entered: 04/21/2008)"

Judge Folsom got the case back today. Motions are sure to follow.


----------



## James Long

If it is anything like Florida (distants case) the judge will now ask the parties if there is any reason why the injunction should not be put into effect.

Not that he MUST ask that question or even should ask the question. It shouldn't have been asked in the Florida case (mandated injunction, and all that). But judges have a tendacy to do what they want to do.


----------



## spear61

Take a look at the last Tivo 10k. Accumulated losses of 773 million. 32 million loss in 2007. 28 million income from Directv in 2007. Directv moving away from Tivo and to another supplier ( no more 28 million annual income).

Tivo better cut a deal with dish and settle this mess or they continue to die the death of a 1000 knives.


----------



## Richard King

*DISH Network says some models of DVR can no longer be sold*
http://www.engadget.com/2008/04/21/dish-network-says-some-models-of-dvr-can-no-longer-be-sold/
Re: CLARIFICATION TO NOTICE OF AMENDED FINAL JUDGMENT AND
PERMANENT INJUNCTION

Link is to an internal memo that was released to dealers. I don't want to post it here, but since it's now public info feel free to check the link.\

It states, among other things, that any 721, 921, 942 or HomeZone 1022 models that have not been installed can not be installed and will no longer be activated. Of course, the HD receivers (921, 942) really shouldn't be in the product pipeline anyway and all should have been sold ages ago since they are MPEG2 receivers.


----------



## Curtis52

Richard King said:


> *DISH Network says some models of DVR can no longer be sold*
> http://www.engadget.com/2008/04/21/dish-network-says-some-models-of-dvr-can-no-longer-be-sold/
> Re: CLARIFICATION TO NOTICE OF AMENDED FINAL JUDGMENT AND
> PERMANENT INJUNCTION
> 
> Link is to an internal memo that was released to dealers. I don't want to post it here, but since it's now public info feel free to check the link.\
> 
> It states, among other things, that any 721, 921, 942 or HomeZone 1022 models that have not been installed can not be installed and will no longer be activated. Of course, the HD receivers (921, 942) really shouldn't be in the product pipeline anyway and all should have been sold ages ago since they are MPEG2 receivers.


It was linked in a post a couple of days ago along with the original notice from Dish. Thanks though.


----------



## Richard King

I noticed the date of the 18th on the memo, but must have missed it when it was posted here. Oh well. :lol:


----------



## peak_reception

> Judge Folsom got the case back today. Motions are sure to follow.


 I thought it was back with Judge Folsom on the 18th. No wonder the fireworks haven't started yet. I expect Tivo to waste no time filing for a Contempt of Court hearing. DISH will try to negotiate the FINAL AND PERMANENT injunction (argue that DVRs no longer infringe etc) and request a stay from the Supreme Court which wll be rejected.

Judge Folsom will then sternly warn of consequences to follow (DVR shutdowns, huge $$$ penalties) and DISH will finally come to its senses and pay out big time to Tivo . Just a guess: $ 500,000,000.00 to pay out what's already been decided + what accrues since + and to preclude the rest [on hardware and ALL other DVR infringement which could easily fall under the doctrine of equivalents]. In return, Tivo would agree to no other litigation. Case closed by the September, 2008. No DVRs will ever be shut down but DISH will pay in full to avoid that possibility. My 500 Million $$$ guess includes a big licensing fee too.

DISH could of course gamble on (after SCOTUS passes on their appeal) with their pair of twos poker hand, hoping against hope that TIvo will collapse in the interim or some other miracle. But in doing so they risk *DIRE* consequences to themselves and their customers. The ultimate pay out could be even more what I guess at above, plus DVRs shut down, the certainty of more litigation against them, etc. *= The Chernobyl Outcome.* ..... No sane company leadership would risk it.


----------



## Greg Bimson

James Long said:


> If it is anything like Florida (distants case) the judge will now ask the parties if there is any reason why the injunction should not be put into effect.


The problem? Unlike the distants case, the injunction is already in effect. So what happens when one violates the terms of a standing injunction?


----------



## James Long

peak_reception said:


> I thought it was back with Judge Folsom on the 18th.


It took a business day to get between courts. Check the paragraph that Curtis posted this afternoon. Both dates are there.

The injunction is "technically" in force ... but when Judge Folsom spends any time on it is anyone's guess. It isn't like he's sitting around doing nothing waiting for this case to return.



Greg Bimson said:


> The problem? Unlike the distants case, the injunction is already in effect. So what happens when one violates the terms of a standing injunction?


Possibly "armed marshals with guns" show up on the doorstep. But DISH isn't violating the injunction.

The distants injunction left NO LEGAL WAY for E*/DISH to ever offer distants under that section of law again. A death penalty required by law. There is no such injunction in this case ... no death penalty. DISH can offer non-infringing DVRs to their heart's and shareholder's content.


----------



## jacmyoung

I think we at least can give the judge the opportunity to speak, rather speak for him. It is clear we all had stated our opinions and our interpretations of the law.

Why not let judge's next action speaks for himself? It is not as if we have to wait another three months, in fact if James is correct we may find out any day now what is going to happen.

As far as the distants injunction, am I correct had DISH continued to press on they can argue the injunction was unreasonable? Because in any such case, a settlement should always be an option, if the parties can resolve among themselves? But DISH decided to drop it probably because they did not want to spend that 70 million bucks to settle after all.


----------



## James Long

In the distants case E* waited too long for a settlement. The Florida judge had a _*mandate*_ from the appeals court requiring him to issue the injunction. Even though he asked the "is there any reason why I shouldn't issue this" question, his job was clear. He had to do what he was ordered to do. E* needed to stop the case before the mandate came back. They didn't.

In this case the injunction is limited and temporary. It does NOT prevent DISH from developing and selling non-infringing DVRs and does not prevent Tivo from licensing their DVR technology to DISH. The injunction does not prevent DISH from entering the DVR marketplace ever again.

It could be a while before we hear from Judge Folsom. Then again, it could be tomorrow. Everybody has speculated on _an_ outcome. The DVRs are still working. It is up to the courts and the parties to figure out.


----------



## peak_reception

> Why not let judge's next action speaks for himself?


 Of course the judge will speak for himself. Nothing we say or do on this forum will affect that.



> But DISH isn't violating the injunction.


Whether or not DISH is defying the injunction is up to the judge to decide.


----------



## peak_reception

> In this case the injunction is limited and temporary.


So that's why it's called a "Final and Permanent Injunction" ? :nono:

I hope we do find out soon. This should be very interesting.


----------



## scooper

Ok - WHAT would happen if Dish decided to ignore this injunction ?

There's no "death penalty" like there was for the Distant Networks suit.


----------



## BNUMM

It is a permanent injunction against future infringement. Infringement on the software may be possible to avoid. If the "Doctrine of Equivalents" is included then things could be difficult for Echostar.


----------



## jacmyoung

James Long said:


> In the distants case E* waited too long for a settlement. The Florida judge had a _*mandate*_ from the appeals court requiring him to issue the injunction. Even though he asked the "is there any reason why I shouldn't issue this" question, his job was clear. He had to do what he was ordered to do. E* needed to stop the case before the mandate came back. They didn't.
> 
> In this case the injunction is limited and temporary. It does NOT prevent DISH from developing and selling non-infringing DVRs and does not prevent Tivo from licensing their DVR technology to DISH. The injunction does not prevent DISH from entering the DVR marketplace ever again.
> 
> It could be a while before we hear from Judge Folsom. Then again, it could be tomorrow. Everybody has speculated on _an_ outcome. The DVRs are still working. It is up to the courts and the parties to figure out.


Thank you for the info, I did not follow that distants case closely. I'd still say that injunction was not properly worded, it should not have eliminated any future possible settlement opportunity. As a result the affiliates would never have a chance to receive money from DISH even if DISH agreed to pay them.

If this judge is anyone like the last one, he might ask the same question before a contempt hearing. Given DISH's clear response to the injunction, he should.


----------



## jacmyoung

BNUMM said:


> It is a permanent injunction against future infringement. Infringement on the software may be possible to avoid. If the "Doctrine of Equivalents" is included then things could be difficult for Echostar.


That is my belief as well. One thing we learned from all these is, judges make mistakes too Both judges did.


----------



## BNUMM

If the judges made mistakes why did E* not base their appeals on these errors?


----------



## James Long

jacmyoung said:


> Thank you for the info, I did not follow that distants case closely. I'd still say that injunction was not properly worded, it should not have eliminated any future possible settlement opportunity. As a result the affiliates would never have a chance to receive money from DISH even if DISH agreed to pay them.


The distants injunction was dictated by law ... variations not allowed. 

In this case "permanent and final" isn't as "permanent and final" as it sounds. It is light reading, for anyone interested (attached). The injunction only applies to DVRs that infringe, only applies as long as the patent is in effect, and does not in any way prohibit Tivo from licensing their patent to DISH in the future nor prohibit DISH from developing other DVRs. There are limits.


----------



## Greg Bimson

James Long said:


> In this case "permanent and final" isn't as "permanent and final" as it sounds.


Not trying to be funny, but why would a court order a "permanent and final" injunction, which you would state is neither?


jacmyoung said:


> Thank you for the info, I did not follow that distants case closely. I'd still say that injunction was not properly worded, it should not have eliminated any future possible settlement opportunity. As a result the affiliates would never have a chance to receive money from DISH even if DISH agreed to pay them.


But that is the whole problem. DISH offered the money after the case was decided by the Court of Appeals, which directed the District Court to enter the "permanent and final" injunction. Once done, DISH no longer offered distant networks, and until some kind of legislation is passed, will never do so.

In this case, there is a "permanent and final" injunction, where it appears DISH has followed it to the letter except for two points:

DVR's with the new software have not been disabled as DVR's;
DVR's with the new software are still being sold and activated as DVR's.


----------



## Greg Bimson

jacmyoung said:


> Both judges did.


What "both judges" are we discussing?


----------



## Kheldar

peak_reception said:


> The Chernobyl Outcome. No sane company leadership would risk it.


But, remember, we are talking about Crazy Charlie here. :grin:


----------



## James Long

Greg Bimson said:


> Not trying to be funny, but why would a court order a "permanent and final" injunction, which you would state is neither?


Perhaps reading the rest of the statement in that post would explain? As far as the court is concerned, it is the resolve of this case - ending the case forever. But read the injunction ... it does NOT say that DISH can never offer any DVR again nor that Tivo is restrained from licensing even the technology in question to DISH.

No "death penalty." Not very permanent or final in real life.



> DVR's with the new software have not been disabled as DVR's;
> DVR's with the new software are still being sold and activated as DVR's.


Yep. DVRs that are more than colorably different are being sold by DISH. So sue them.


----------



## peak_reception

> Yep. DVRs that are more than colorably different are being sold by DISH. So sue them.


 I hereby find you in contempt of topic and enjoin you from further posting on this thread until you no longer infringe logical and legal argument! :rant:


----------



## jacmyoung

A duplicate what I posted:



> Originally Posted by Greg Bimson
> ...Find me a proceeding where an injunction was rewritten after it was placed in standing and I'll back down. The problem is the injunction states that certain receivers must have their DVR playback and storage disabled. It does NOT state that new software can be implemented to revoke the injunction.


Now I see your point.

While we may not find an injunction rewritten after it was held standing, we have ample examples of contempt rulings being reversed on appeals.

So here is what I think DISH is counting on:

Once the judge issues a contempt ruling, DISH will appeal on two grounds:

1) The injunction did not prevent DISH from designing new software and use such software as long as the new software is non-infringing. Therefore the contempt ruling on the use of the new software must be reversed. The injunction can not act on things it does not say it can act on.

2) DISH is not in contempt when it is using its hardware because the hardware verdict was reversed, therefore DISH can not be prevented from selling and using a non-infringing hardware product. The contempt ruling on the hardware must be reversed, in light of the fact the hardware verdict was reversed, and the hardware was no longer considered infringing, the injunction on the hardware had become improper.

As such the contempt ruling must be reversed. When that happens, the whole injunction is practically over, unless in a later proceeding the new software will be found still infringing, and/or in a later trial, the hardware will be again found infringing. That is what DISH's team is betting on.

And don't tell me this can not happen, it happens all the time.


----------



## Leprechuan

If I understand correctly, the Dish Players or DP XXX series will be disbalbed for future operation as a DVR, but the ruling will not affect, in any way, the ViP XXX series.
Have I got it right?
IF I am correct, I should still be able to record with my ViP 622.


----------



## Herdfan

Greg Bimson said:


> Not trying to be funny, but why would a court order a "permanent and final" injunction, which you would state is neither?


My guess would be that the judge has the power to modify his own injunction.

Remember, he issued that injunction when the hardware claim was valid and he may have relied on that in his decision to issue the injunction. He may change his mind which he can do.


----------



## Curtis52

Leprechuan said:


> If I understand correctly, the Dish Players or DP XXX series will be disbalbed for future operation as a DVR, but the ruling will not affect, in any way, the ViP XXX series.
> Have I got it right?
> IF I am correct, I should still be able to record with my ViP 622.


The VIP series uses the Broadcom chip so I wouldn't be surprised if those infringe too.

"Based on evidence that the Broadcom chip and the temporary data storage 
buffer operate together in the process of moving data from the physical data source, it 
was reasonable for the jury to find that the temporary data buffer was simply an 
extension of the physical data source where data was stored pending its extraction for 
further processing. From that evidence, the jury could permissibly find that the "Ioctl" 
command, the relevant portion of the source object in the EchoStar DVRs, extracts 
video and audio data from the physical data source. As there is substantial evidence 
that the required data and operations are performed by the accused DVRs, and 
because we agree that the pertinent data and operations do not need to be housed 
within a particular file or grouping of lines of code, the EchoStar DVRs satisfy the 
"extracting" limitation. We therefore uphold the jury's verdict that the EchoStar DVRs 
infringe the software claims of the '389 patent. "


----------



## Greg Bimson

Herdfan said:


> Remember, he issued that injunction when the hardware claim was valid and he may have relied on that in his decision to issue the injunction. He may change his mind which he can do.


But why bother, when the Court of Appeals blessed the injunction by changing not a single word and removing the stay. As a matter of fact, that injunction became live and in full effect without the judge. It was the judge that felt the infringement was egregious enough to put the injunction in full effect and not issue a stay pending appeal. The Court of Appeals issue the stay one day later.

Remember, and this is an important point to remember, the Court of Appeals only reversed and remanded the hardware claims. The Court of Appeals let the Final Judgment and Injunction stand, even without a decision on the hardware claims. Which means the monetary damages and the injunction were allowed to stand on the software claims alone.


James Long said:


> Perhaps reading the rest of the statement in that post would explain? As far as the court is concerned, it is the resolve of this case - ending the case forever. But read the injunction ... it does NOT say that DISH can never offer any DVR again nor that Tivo is restrained from licensing even the technology in question to DISH.
> 
> No "death penalty." Not very permanent or final in real life.


I only meant "death penalty" in the sense of the existing receivers, and yes, DISH/SATS can strike a licensing deal to keep the infringing receivers active.

All I am saying is at this time, the DP-501, and the other "Infringing Products", are no longer supposed to be sold. DISH has stated they are selling those receivers with updated software. Something doesn't jive here.


----------



## TBoneit

Curtis52 said:


> Here is what the injunction (currently on hold) says:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.
> 
> Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


Going back to near the start of this thread, It appears that Dishplayers were not infringing or that Tivo was afraid to go after Microsoft.

Another question is why is it that Tivo went after Dishnetwork on hardware claims based on the use of a Broadcom chip. It would appear to this layperson that if anyone infringed that way it would be Broadcom who designed the chip and not Dishnetwork.

My guess is Tivo picked the opponent and is hoping for a permanent injunction against E* & DVRs as a way to force everybody else to license their technology. A gamble that shows signs of desperation as if they lose they're gone and if they win they win big. Just guessing here. Sort of throwing things at the wall to see what sticks.


----------



## Curtis52

TBoneit said:


> Going back to near the start of this thread, It appears that Dishplayers were not infringing or that Tivo was afraid to go after Microsoft.
> 
> Another question is why is it that Tivo went after Dishnetwork on hardware claims based on the use of a Broadcom chip. It would appear to this layperson that if anyone infringed that way it would be Broadcom who designed the chip and not Dishnetwork.
> 
> My guess is Tivo picked the opponent and is hoping for a permanent injunction against E* & DVRs as a way to force everybody else to license their technology. A gamble that shows signs of desperation as if they lose they're gone and if they win they win big. Just guessing here. Sort of throwing things at the wall to see what sticks.


A patent holder can sue anyone that profits from the use of their patent, all the way up and down the line. For example, if a Motorola DVR is found to infringe and is used by a cable company, TiVo can sue both of them.


----------



## Curtis52

TBoneit said:


> Going back to near the start of this thread, It appears that Dishplayers were not infringing or that Tivo was afraid to go after Microsoft.


There probably are not enough still in service to go to the bother of going after the Dishplayer. The software is probably dissimilar enough to current DVRs that inclusion in the trial would have confused the jurors.


----------



## James Long

Greg Bimson said:


> All I am saying is at this time, the DP-501, and the other "Infringing Products", are no longer supposed to be sold. DISH has stated they are selling those receivers with updated software. Something doesn't jive here.


DISH was ordered to turn off infringing receivers. With new software (installed last year) the DP-501 is no longer an infringing receiver.

No, I don't expect Tivo to roll over and accept that ... nor do I expect DISH to roll over and turn off their redesigned DVRs. This is why we have a court system, to solve disputes like these.


----------



## scooper

My 625 is still operational...


----------



## Curtis52

James Long said:


> DISH was ordered to turn off infringing receivers.


Dish was ordered to turn off infringing products. Can you name them?


----------



## bobcamp1

Curtis52 said:


> A patent holder can sue anyone that profits from the use of their patent, all the way up and down the line. For example, if a Motorola DVR is found to infringe and is used by a cable company, TiVo can sue both of them.


Not to go too far off topic, but this is a topic that could make it all the way to the Supreme Court. It's double-dipping, and numerous companies have been complaining about it for a long time.


----------



## Curtis52

bobcamp1 said:


> Not to go too far off topic, but this is a topic that could make it all the way to the Supreme Court. It's double-dipping, and numerous companies have been complaining about it for a long time.


It's not double dipping because sellers each get a cut of the pie in the process of infringement.


----------



## James Long

Curtis52 said:


> Dish was ordered to turn off infringing products. Can you name them?


See http://www.dbstalk.com/showpost.php?p=1559266&postcount=294

"DISH Network and EchoStar have taken steps to modify their DVR products so that they are not covered by the Infringed Claims," ... "the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software. Because the injunction goes into effect today, any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field."

Hope that helps, have a nice day!


----------



## Greg Bimson

James Long said:


> DISH was ordered to turn off infringing receivers. With new software (installed last year) the DP-501 is no longer an infringing receiver.


I'll ignore the part about shutting down the DVR's in the subscribers' hands right now, because that may still be counting down. The injunction:


> Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 USC 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the United States, the *Infringing Products*, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.


The term "Infringing Products" has the meaning DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942.

*The injunction does not specify* that all infringing products can no longer be sold. *The injunction does specify* that the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 can no longer be sold.


----------



## Curtis52

James Long said:


> See http://www.dbstalk.com/showpost.php?p=1559266&postcount=294
> 
> "DISH Network and EchoStar have taken steps to modify their DVR products so that they are not covered by the Infringed Claims," ... "the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software. Because the injunction goes into effect today, any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field."
> 
> Hope that helps, have a nice day!


Can't find the order?


----------



## Curtis52

Greg Bimson said:


> *The injunction does not specify* that all infringing products can no longer be sold.


What do you think the "all other products..." refers to?


----------



## Greg Bimson

I hate English diagram trees. I'll have to break one of those out on this part of the injunction at a later date:


Curtis52 said:


> What do you think the "all other products..." refers to?


The entire phrase for that piece is, "either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims."

I seem to recall you posting that claims 6 and 7 describe timestamping the MPEG file. So if DISH/SATS released a new DVR with new software tomorrow that only infringed upon claims 6 and 7 of the '389 patent, that new DVR would not be subject to this injunction.

The "all other products..." relates to the Infringed Claims.


----------



## Curtis52

Well, I'm totally confused.

You said: "The injunction does not specify that all infringing products can no longer be sold."

I guess it's semantics. There is a list of infringing products. Yes. It doesn't say anywhere that other infringing products can be sold. In fact, it says the opposite.


----------



## James Long

Curtis52 said:


> Can't find the order?


The order (injunction) is attached to the first PDF in the post by Greg linked to in my post. Of course, you should know that, since you must have read the reference before replying. 

With all due respect, what you say, I say, jac says, Greg says, or anyone says in this thread is irrelevant. DISH says what is quoted and posted in Greg's post. If you want to use your mad Google skills and find something from Tivo great!

_"This particularly rapid, unintelligible patter, isn't generally heard, and if it is, it doesn't matter."_


----------



## Curtis52

James Long said:


> The order (injunction) is attached to the first PDF in the post by Greg linked to in my post. Of course, you should know that, since you must have read the reference before replying.
> 
> With all due respect, what you say, I say, jac says, Greg says, or anyone says in this thread is irrelevant. DISH says what is quoted and posted in Greg's post. If you want to use your mad Google skills and find something from Tivo great!
> 
> _"This particularly rapid, unintelligible patter, isn't generally heard, and if it is, it doesn't matter."_


I'm only asking whether you can name the infringing products that were ordered shut down. I'm not asking you to express an opinion.


----------



## bobcamp1

Greg Bimson said:


> Remember, and this is an important point to remember, the Court of Appeals only reversed and remanded the hardware claims. The Court of Appeals let the Final Judgment and Injunction stand, even without a decision on the hardware claims. Which means the monetary damages and the injunction were allowed to stand on the software claims alone.
> 
> All I am saying is at this time, the DP-501, and the other "Infringing Products", are no longer supposed to be sold. DISH has stated they are selling those receivers with updated software. Something doesn't jive here.


Both points are correct. On the first point, it sounded like the Court of Appeals wanted to reduce the amount but had no basis to do this as there were not separate dollar amounts for hardware and software. Also, note that the Court of Appeals had no clue that the infringing software may have already been removed. They were not allowed to rule on that with the first appeal -- they were just looking at the original ruling, not any developments that may have transpired since then. So of course the original injunction was upheld. That topic would be covered under a different appeal.

E* is on very thin ice here -- typically the purpose of the injunction is to force a settlement and exploiting minor technicalities within it is frowned upon. But whether or not they are in contempt right now (or will be in 29 days) can also be appealed. And maybe in the meantime the Court of Appeals will stay the injunction once again, limiting the amount of time E* may be violating the injunction and limiting the fines.

Also, if E* can show it is impossible to disable DVR functionality in these boxes, then they will not be held in contempt. E* could also try to say that this functionality cannot be removed without inhibiting the ability to watch live TV or get and store guide data (I don't think they'll get very far in the District Court with this argument, maybe on appeal).

Other points brought up by others:

The judge may modify or dissolve the injunction at any time. Or an Appellate Court can do it.

Nobody can force E* to brick the DVRs. Nobody is going to hold the software engineers at gunpoint and make them write the code and distribute the code that bricks the DVRs. No one is going to jail, either. This is a civil case, not a criminal case. Usually, additional sanctions and fines are ordered. These fines can get quite large.

This injunction only currently covers the DVRs explicitly listed. If the judge later find other DVRs to be infringing, then he can add them to the injunction or simply issue a ruling. But E* does not have to pay additional fines for these DVRs until after the ruling is issued, and the fines cannot be retroactive.


----------



## Greg Bimson

But speaking of English sentence diagram trees, I will do this:


> Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof,


Defendants and their associates


> are hereby restrained and enjoined, pursuant to 35 USC 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the United States,


can no longer make, use, offer, sell or import into the US


> the Infringing Products, either alone or in combination with any other product


the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 or any other product which includes the listed receivers


> and all other products that are only colorably different therefrom in the context of the Infringed Claims,


or any product that infringes upon claims 1, 5, 21, 23, 32, 36, 52, 31 and 61


> whether individually or in combination with other products or as part of another product


as a standalone, piece or combination of anther product


> and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.


and from infringing or inducing others to infringe the listed claims of the '389 patent. Which now reads like this...

*Defendants and their associates can no longer make, use, offer, sell or import into the US the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 or any other product which includes the listed receivers, or any product that infringes upon claims 1, 5, 21, 23, 32, 36, 52, 31 and 61, as a standalone, piece or combination of anther product and from infringing or inducing others to infringe the listed claims of the '389 patent.*

Now because of the reversal of the hardware claims, the injunction cannot be used on hardware claims. I do not know the numbers of the hardware claims, so some of the hardware claim numbers in the list are removed. That is, unless TiVo goes after the hardware claims again.


----------



## Curtis52

bobcamp1 said:


> Also, if E* can show it is impossible to disable DVR functionality in these boxes, then they will not be held in contempt. E* could also try to say that this functionality cannot be removed without inhibiting the ability to watch live TV or get and store guide data (I don't think they'll get very far in the District Court with this argument, maybe on appeal).


Judge Folsom:

"Defendants do not dispute that, with software updates transmitted directly to the infringing products, the DVR capabilities of the infringing products can be disabled. This process, though cumbersome, is not on balance a weighty hardship for Defendants. "

As far as displaying live TV goes, in many DVRs that would involve recording and playing at the same time. That is probably infringement.



bobcamp1 said:


> This injunction only currently covers the DVRs explicitly listed. If the judge later find other DVRs to be infringing, then he can add them to the injunction or simply issue a ruling. But E* does not have to pay additional fines for these DVRs until after the ruling is issued, and the fines cannot be retroactive.


I would think that the damages would be retroactive to the jury verdict since that was the formal notification of infringement. They can't claim they didn't know.


----------



## James Long

Curtis52 said:


> I'm only asking whether you can name the infringing products that were ordered shut down. I'm not asking you to express an opinion.


Should I claim censorship? 

The list was provided by DISH.


----------



## gully_foyle

bobcamp1 said:


> Nobody can force E* to brick the DVRs. Nobody is going to hold the software engineers at gunpoint and make them write the code and distribute the code that bricks the DVRs. No one is going to jail, either. This is a civil case, not a criminal case. Usually, additional sanctions and fines are ordered. These fines can get quite large.


What does DISH do if a user doesn't pay? Are you saying that they have no way to turn off a DVR? Or even separately disable the DVR part (by preventing further recording)? DirecTV certainly can, and does do, both.

Again, as is pointed out, the idea here is to get the parties to settle, with a gun at the head of the infringing party. See last year's Blackberry case.

Further, the idea that the appellate court sided with DISHonthe hardware part doesn't hold up. They remanded, which means that they want the district court to revisit the issue as it wasn't settled to the appellate court's satisfaction. That could mean anything from a new trial to the judge making a ruling. And I'm pretty sure this falls towards the latter.

DISH should settle and soon. I'm sure Charlie's lawyers are exasperated right now, because this is getting on towards fatal for DISH, when it doesn't have to. Even though I'm a DirecTV subscriber, I don't want them to be the only game in town. Settle!


----------



## Leprechuan

For the fun of it, I went to the beginning of the thread, I agree with James Long, the decision was badly written.
A long time ago, I actually dated a lawyer, she was cute, and funny, and loved baseball. We got along great, but ask her she went about writing a brief, all she could say is, ". . . find a lot of big words and string'em together."
Almost 30 years ago, New York state passed a plain English bill which meant that all contracts had to be written in simple every day plain English.
I do not know if the law is still in effect.

Leprechuan


----------



## James Long

kcmurphy88 said:


> What does DISH do if a user doesn't pay? Are you saying that they have no way to turn off a DVR? Or even separately disable the DVR part (by preventing further recording)? DirecTV certainly can, and does do, both.


I'm reasonably sure DISH can disable the DVR functions ... but will they? Bob's point wasn't that DISH could not disable DVRs but that no one other than DISH can disable DISH's DVRs.

It is the "armed marshals with guns" statement. Judge Folsom can do a lot as a judge but he can't physically disable millions of DVRs. That would take DISH's cooperation.


----------



## Curtis0620

James Long said:


> I'm reasonably sure DISH can disable the DVR functions ... but will they? Bob's point wasn't that DISH could not disable DVRs but that no one other than DISH can disable DISH's DVRs.
> 
> It is the "armed marshals with guns" statement. Judge Folsom can do a lot as a judge but he can't physically disable millions of DVRs. That would take DISH's cooperation.


NO, but he can fine them millions of $$$ per day until they do.


----------



## scooper

He can fine - doesn't mean it will be paid....


----------



## Curtis0620

scooper said:


> He can fine - doesn't mean it will be paid....


Then he can have the officers arrested.


----------



## Curtis52

From Dish's patent application:

"These earlier systems may be inefficient and overly complicated in some operational settings. Such systems require intensive processing during input of the entire set of broadcast data. Given the high throughput required for modern DVR functions, the processing power required during input in such systems may tax the CPU or, in the case of the system of Barton, et al., *require specialized hardware and software*."

So if the hardware is specifically tailored to use software that is also specifically tailored to use the system of Barton, et al., how can that be fixed with a software download?


----------



## James Long

Curtis0620 said:


> Then he can have the officers arrested.


And now we're back to "armed marshals with guns".

Glad you finally agree with me.


----------



## Leprechuan

Air Marshals looking at my DVR?


----------



## James Long

Curtis52 said:


> "These earlier systems may be inefficient and overly complicated in some operational settings. Such systems require intensive processing during input of the entire set of broadcast data. Given the high throughput required for modern DVR functions, the processing power required during input in such systems may tax the CPU or, in the case of the system of Barton, et al., require specialized hardware and software."
> 
> So if the hardware is specifically tailored to use software that is also specifically tailored to use the system of Barton, et al., how can that be fixed with a software download?


Taken completely out of context (as you have) it is a hard question to answer. Is this a description of the problem that Tivo solved with their indexing system?

DISH has solved this problem by using modern processors that are not overly taxed by the new software. (Information you will find by reading the rest of the patent.)


----------



## Curtis52

James Long said:


> Taken completely out of context (as you have) it is a hard question to answer. Is this a description of the problem that Tivo solved with their indexing system?


Barton et al. = TiVo.


----------



## Curtis0620

scooper said:


> He can fine - doesn't mean it will be paid....


You're right, Charlie would rather go to prison than turn off your DVR.


----------



## scooper

Curtis0620 said:


> You're right, Charlie would rather go to prison than turn off your DVR.


Jail for that ? You gotta be kidding. You're talking civil, not criminal court here.

Would you go to jail for not paying a fine your HOA levied on you ? I don't think so.

It will never get to that point.


----------



## Curtis0620

Incase anyone wanted to read the original Injuction:

http://www.patentlyo.com/patent/TiVo_20Granting_20Injunction_1.pdf


----------



## James Long

Curtis52 said:


> Barton et al. = TiVo.


Ahh ... then look at the 'or' for your answer.



Curtis0620 said:


> You're right, Charlie would rather go to prison than turn off your DVR.





bobcamp1 said:


> Nobody can force E* to brick the DVRs. Nobody is going to hold the software engineers at gunpoint and make them write the code and distribute the code that bricks the DVRs. No one is going to jail, either. This is a civil case, not a criminal case.


----------



## Curtis0620

scooper said:


> Jail for that ? You gotta be kidding. You're talking civil, not criminal court here.
> 
> Would you go to jail for not paying a fine your HOA levied on you ? I don't think so.
> 
> It will never get to that point.


So what would be the penalty for refusing to abide by a court order? would you not go to jail for refusing to pay parking or speeding tickets?


----------



## Greg Bimson

I think some people have forgotten what a contempt proceeding is.


----------



## peak_reception

It might help to clarify some terms. It does for me anyway:



> enjoin v. for a court to order that someone either do a specific act, cease a course of conduct, or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it hopes to be enjoined, allowing time for a written response. Then a court hearing is held in which the judge will consider evidence, both written and oral, listen to the arguments and then either grant the writ or deny it. If granted the court will issue a final or permanent injunction. A preliminary injunction or temporary injunction are orders made by the court while the matter is being processed and considered, based on the petition and any accompanying declarations, either of which is intended to keep matters in status quo (as they are) or prevent possible irreparable harm (like cutting trees, poisoning a stream, or moving out of the country with a child or money) until a final decision is made.


Source: thefreedictionary.com


----------



## Curtis52

scooper said:


> Jail for that ? You gotta be kidding. You're talking civil, not criminal court here.


"Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. "

wikipedia


----------



## Greg Bimson

I remember here in the DC area regarding a divorce proceeding where the wife sent their child away, out of the country, to avoid having to share custody.

The judge placed the wife in contempt of court. She was in jail for about 18 months.

That was a CIVIL case.


----------



## peak_reception

The question this explanation raises for me is: If DISH refuses to abide by the final injunction (in this civil case) whether criminal contempt would/could be imposed by the judge?


> Contempt of Court
> Contempt of court is behavior that opposes or defies the authority, justice, and dignity of the court. Contempt charges may be brought against parties to proceedings; lawyers or other court officers or personnel; jurors; witnesses; or people who insert themselves in a case, such as protesters outside a courtroom. Courts have great leeway in making contempt charges, and thus confusion sometimes exists about the distinctions between types of contempt. Generally, however, contempt proceedings are categorized as civil or criminal, and direct or indirect.
> Civil contempt generally involves the failure to perform an act that is ordered by a court as a means to enforce the rights of individuals or to secure remedies for parties in a civil action. For instance, parents who refuse to pay court-ordered Child Support may be held in contempt of court under civil contempt. Criminal contempt involves behavior that assaults the dignity of the court or impairs the ability of the court to conduct its work. Criminal contempt can occur within a civil or criminal case. For example, criminal contempt occurs when a witness or spectator shouts or insults the judge during a trial. A civil contempt usually is a violation of the rights of one person, whereas a criminal contempt is an offense against society. Courts use civil contempt as a coercive power, wielding it only to ask that the contemnor* comply with the courts' actions. Criminal contempt is punitive; courts use it to punish parties who have impaired the courts' functioning or bruised their dignity.


Source: thefreedictionary.com *contemnor = a person or party found in contempt of court


----------



## peak_reception

This helps to clarify it some more:



> The court's power to punish for contempt (called "citing" one for contempt) includes fines and/or jail time (called "imposing sanctions.") Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.


Source: thefreedictionary.com


----------



## Curtis52

Noun	1.	criminal contempt - an act of disrespect that impedes the administration of justice

freedictionary.com


----------



## peak_reception

Does anyone know when Tivo's '389 patent expires?


----------



## Curtis52

peak_reception said:


> Does anyone know when Tivo's '389 patent expires?


07-30-2018


----------



## jacmyoung

I found it interesting people can be so confident that they are talking how long a jail term is for Charlie at this point. The fact is the contempt procedure has not even started yet, it takes Tivo’s asking for such to put the contempt proceeding in motion, but last I checked Tivo has not done anything yet.

Tivo has not ask the judge for a summary judgment on the hardware claim either, Tivo also has not asked the judge to add any thing new to the injunction as some had predicted. The bottom line Tivo has done nothing yet.

How about at least we wait for Tivo’s next move before going too far? Because if you do go too far ahead yourself, you may be in some kind of shock if things don’t pan out exactly the way you wished. It is not necessary.


----------



## Curtis52

jacmyoung said:


> I found it interesting people can be so confident that they are talking how long a jail term is for Charlie at this point. The fact is the contempt procedure has not even started yet, it takes Tivo's asking for such to put the contempt proceeding in motion, but last I checked Tivo has not done anything yet.
> 
> Tivo has not ask the judge for a summary judgment on the hardware claim either, Tivo also has not asked the judge to add any thing new to the injunction as some had predicted. The bottom line Tivo has done nothing yet.


How do you know?

Also, as far as I know, no one here has talked about adding anything new ro the injunction except you.


----------



## Greg Bimson

jacmyoung said:


> I found it interesting people can be so confident that they are talking how long a jail term is for Charlie at this point


No one has said Mr. Ergen will go to jail. Just that he could, if found in contempt of the court.

Reading more into the statements at hand.

TiVo has "done nothing", because the case was finally put back at the District Court yesterday, meaning nothing could be done with the case until today. My current view has TiVo asking for a summary judgment on the hardware claims prior to a contempt proceeding. And the District Court still must schedule the case on the docket before there is any hearing.


----------



## phrelin

It's amusing to visualize Charlie going to jail. But the reality is likely Charlie having to agree to a settlement which might be harder on him then jail.

Nonetheless Dish's memo continuing the "redesigned software" assertion and ending sales of model 721, 921, 942 and HomeZone 1022 receivers all look like pre-negotiation strategies to me. Even the fact that the memo was "leaked." It will all boil down to egos and money.

I was sort of hoping they'd have to shut down my two owned 508's so I could get a deal on another 722.


----------



## peak_reception

> It's amusing to visualize Charlie going to jail


 Just imagine the Charlie Chats! ******* and now, LIVE, from Cell 13... ******* :eek2:


----------



## jacmyoung

Greg Bimson said:


> ... My current view has TiVo asking for a summary judgment on the hardware claims prior to a contempt proceeding. And the District Court still must schedule the case on the docket before there is any hearing.


How do you make such prediction? Did you actually have any past cases said such was done? I have read many instances where a summary judgment was issued, followed by a permanent injunction, not the other way around.

That led me to think had Tivo intended to seek such summary judgment, they should have done so prior to last Friday. Why didn't they do so? What give them the second thought? Did Tivo's legal counsels see things you did not?

It seems to me when a permanent injunction is in force, all unnecessary interference should be avoided, otherwise the party under injunction can easily seek relief citing such interference.

Which may explain why Tivo is very quite right now. And why I said let's wait till we see Tivo's next move, it will not be too long. DISH has made clear its intention, once the clock stops, we should see Tivo's movement.


----------



## Curtis52

II. LEGAL STANDARDS
A.
Motion for Reconsideration under Rule 59(e)
A district court has considerable discretion to grant or to
deny a motion for reconsideration. See Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). A court's
reconsideration of an earlier order is an extraordinary remedy,
which should be granted sparingly. See Fields v. Pool Offshore,
Inc., No. Civ. A. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3,
1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G.
Sharp, Inc., Nos. Civ. A. 93-3590, 93-3591, 1995 WL 517120, at *1
(E.D. La. Aug. 30, 1995). The Fifth Circuit has held that a
motion for reconsideration "is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment." Templet v.
HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). A Rule
59(e) motion "serve the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly
discovered evidence." Id. at 479 (quotation omitted). The Court
must "strike the proper balance" between the need for finality
and "the need to render just decisions on the basis of all the
facts." Edward H. Bohlin Co., 6 F.3d at 355. To succeed on a
motion for reconsideration, a party must "'clearly establish
either a manifest error of law or fact or must present newly
discovered evidence.'" Ross v. Marshall, 426 F.3d 745, 763 (5th
Cir. 2005) (quoting Pioneer Natural Res. USA, Inc. v. Paper,
Allied Indus., Chem. & Energy Workers Int'l Union Local 4-487,
328 F.3d 818, 820 (5th Cir. 2003))."

pdf


----------



## James Long

Curtis52 said:


> A Rule 59(e) motion "serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Id. at 479 (quotation omitted).


 :joy: :joy: :joy:


> The Court must "strike the proper balance" between the need for finality
> and "the need to render just decisions on the basis of all the facts." Edward H. Bohlin Co., 6 F.3d at 355. To succeed on a motion for reconsideration, a party must "'clearly establish either a manifest error of law or fact or must present newly
> discovered evidence.'" Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (quoting Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int'l Union Local 4-487, 328 F.3d 818, 820 (5th Cir. 2003))."
> 
> pdf


And there is a path ... a motion to reconsider based on new evidence ... that would make DISH happy!


----------



## Curtis52

James Long said:


> And there is a path ... a motion to reconsider based on new evidence ... that would make DISH happy!


A statement that "we don't infringe. We mean it this time. Really." isn't evidence.

Besides, they should have asked for work-around wording in the injunction before judgment. That's the point of what it says. There's a need for finality.


----------



## jacmyoung

Curtis52 said:


> A statement that "we don't infringe. We mean it this time. Really." isn't evidence.
> 
> Besides, they should have asked for work-around wording in the injunction before judgment. That's the point of what it says. There's a need for finality.


They did not just say we no longer infringed, they have new software as evidence. Are you trying to say they do not even have the new software they said they had?

Maybe they did not have the new software finalized at the time, maybe they still need to change a few codes to make sure the new software was indeed infringement proof. Maybe they even today is working to further enhance the new code to make sure when the time comes they will produce such evidence it is as full proof as it can be.

The point is there is new evidence, such new evidence has never been formally introduced to the court. The law clearly states when such new evidence exists, a motion for reconsideration can be requested. I am not saying this is what DISH will do, just that for you to second guess why and why not and what should have happened. Maybe we should just stick to what that paragraph says.


----------



## Greg Bimson

> A court's reconsideration of an earlier order is an extraordinary remedy, which should be granted sparingly.


In other words, slim meet none.


> ...a motion for reconsideration "is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment."





James Long said:


> And there is a path ... a motion to reconsider based on new evidence ... that would make DISH happy!


What is the newly discovered evidence? Attempting to evade an injunction? Rewriting software after being found guilty of infringement? That's simply an argument, "that could have been offered or raised before the entry of judgment."


jacmyoung said:


> How do you make such prediction? Did you actually have any past cases said such was done? I have read many instances where a summary judgment was issued, followed by a permanent injunction, not the other way around.


Because one cannot ask for a hearing on a case that isn't back in court yet. One may ask for emergency motions. But no one has decided to go that far, yet.

A summary judgment can be granted at any time. So you may have heard of cases where a summary judgment is decreed then a permanent injunction is entered. That would be normal; a permanent injunction can be entered once a positive judgment is rendered.

Which is exactly what happened in the TiVo v. Echostar case. Echostar was found guilty of infringement, and a permanent injunction was entered. A positive summary judgment to TiVo of the reversed hardware claims can be entered. No precedence needed.


----------



## Curtis52

jacmyoung said:


> They did not just say we no longer infringed, they have new software as evidence. Are you trying to say they do not even have the new software they said they have?


I certainly wouldn't take their word for it and I don't think the judge will either. This is his "out".

All that would take a hearing. *Reconsideration.*

That's the thing there is no evidence for.

It's over.


----------



## jacmyoung

Greg Bimson said:


> ... No precedence needed.


Now that is something I will never say in the court of law


----------



## jacmyoung

Curtis52 said:


> I certainly wouldn't take their word for it and I don't think the judge will either. This is his "out".
> 
> All that would take a hearing. *Reconsideration.*
> 
> That's the thing there is no evidence for.
> 
> It's over.


But both of you have missed the point, no if DISH is going to request motion for reconsideration, they will produce new evidence, not just saying it. They will printout the new software codes for example, maybe in ten cases load, and haul them over to the judge for his review, they of course will also give Tivo a complete copy of it too.


----------



## Curtis52

jacmyoung said:


> But both of you have missed the point, no if DISH is going to request motion for reconsideration, they will produce new evidence, not just saying it. They will printout the new software codes for example, maybe in ten cases load, and haul them over to the judge for his review, they of course will also give Tivo a complete copy of it too.


That isn't evidence that they have developed non-infringing software. It would require a rehearing to determine that. Dish should have asked for provisions in the injunction allowing a work-around prior to judgment. They missed the boat.

"The Court must "strike the proper balance" between the need for finality
and "the need to render just decisions on the basis of all the facts."


----------



## James Long

Curtis52 said:


> A statement that "we don't infringe. We mean it this time. Really." isn't evidence.


A _patent pending_ process to operate their DVRs without infringing IS new evidence.



Greg Bimson said:


> Rewriting software after being found guilty of infringement? That's simply an argument, "that could have been offered or raised before the entry of judgment."


The software was still under development at the time of the judgment. Rewriting code isn't trival ... making it work in a way that customers barely noticed the change took some time. The software was not ready before the entry of judgment. It would have been improper for them to say "WAIT! Don't write an injunction! We're about to remove the code in question!" before the new code was available.

It is bad enough that the "not colorably different" phrase got written into the injunction ... had DISH announced new code then Tivo may have pushed to have it immediately included in the injunction. This gives them a chance.

Besides, it is just bad business to leak the details of a patent before it is filed.


----------



## Curtis52

James Long said:


> A _patent pending_ process to operate their DVRs without infringing IS new evidence.


Evidence of what exactly. There is no evidence that Dish has even developed software using the patent. There is no requirement to demonstrate that a patent even works. Besides, the media switch and indexing aren't even mentioned in the claim Dish infringed. That stuff is in the hardware claims.


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## phrelin

We'll know soon enough. Any new hearing on fact would create great difficulties for TiVo because everything is about money, and "time is money" is particularly true here.


----------



## Greg Bimson

How is "new software" recently written by SATS considered "new evidence"? I'm still trying to wrap my brain around this one. That would be considered a work-around, and should have been presented prior to the injunction standing in force and full effect. That is why most infringement cases are settled before the issuance of an injunction. Blackberry didn't want to mess with the workaround so they settled, with a stayed injunction staring them dead in the face. Verizon didn't want to mess with a workaround so they settled, with a stayed injunction staring them dead in the face. DISH/SATS didn't settle, has a standing injunction in full force and effect, and still refuse to settle.

But because DISH and SATS are so special, they should be able to get a standing injunction rewritten or stayed because they forgot to present new "evidence", which they recently wrote, to the courts. And this is new "evidence" may or may not infringe.

I understand completely. DISH and SATS are above the law.

Curtis is correct when he states, "Dish should have asked for provisions in the injunction allowing a work-around prior to judgment. They missed the boat." That is why work-arounds are brought up prior to the full effect of an injunction.

Besides, in case anyone has forgotten regular old common law, the guilty verdict was handed out in April, 2006, upon the evidence presented at trial. Something that didn't exist until 2007 is not new "evidence".


----------



## jacmyoung

Curtis52 said:


> Evidence of what exactly. There is no evidence that Dish has even developed software using the patent. There is no requirement to demonstrate that a patent even works. Besides, the media switch and indexing aren't even mentioned in the claim Dish infringed. That stuff is in the hardware claims.


One of the justifications of motion for reconsideration is new evidence, period. You don't need anything else. The whole reconsideration process will determine if such new evidence is indeed valid and if so whether such new evidence would have altered the outcome of the existing order.

So in front of the judge, he has two piles of code printouts, each weighs about 50 lbs, one from the previous submittal during the trial, one just hauled in by DISH with fresh Kinko's scent. They most definitely will look, read and word differently because they are two different codes. Here you have it, a new evidence, compared to the old pile which was used as evidence back then, and that is all that's needed to justify the motion for reconsideration.

Again I am not say this is what DISH will ask for, but this is how they will get the motion for reconsideration if they want to. You have posted it yourself how it is done, why argue with your own research results?


----------



## Curtis52

jacmyoung said:


> So in front of the judge, he has two piles of code printouts, each weighs about 50 lbs, one from the previous submittal during the trial, one just hauled in by DISH with fresh Kinko's scent. They most definitely will look, read and word differently because they are two different codes. Here you have it, a new evidence, compared to the old pile which was used as evidence back then, and that is all that's needed to justify the motion for reconsideration.


That isn't evidence that they have non-infringing software. That's evidence they have software. They've always had software.


----------



## Greg Bimson

The reality is that DISH/SATS so infringed the Time Warp patent that Judge Folsom hurt them badly. A District Court judge will usually stay their own injunction, so they can deal with it when it comes back to their court. Once an appealed case is remanded to the District Court, the judge will look carefully over any new issues that may affect the case. This would include any workarounds to an existing patent, so that the wording of an injunction will allow the infringer to get the injunction revoked.

Not here. Judge Folsom left the injunction to go into full effect because of the breadth of the infringement, but the Court of Appeals stayed it. Upon review, the stay was lifted and now the injunction is in full effect.

New software is not new evidence.


----------



## BNUMM

The new software is not new evidence in the original charge that they infringed. The new software may be evidence that they no longer infringe. That evidence probably would not be considered until after the injunction is enforced.


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## Herdfan

phrelin said:


> We'll know soon enough. Any new hearing on fact would create great difficulties for TiVo because everything is about money, and "time is money" is particularly true here.


Actually, if the SCOTUS denies DISH's appeal, should the court not turn over the funds DISH put up for past infringement? DISH would have hit the end of the road on that case.


----------



## James Long

Greg Bimson said:


> How is "new software" recently written by SATS considered "new evidence"? I'm still trying to wrap my brain around this one.


Well, I, for one, I'm glad that you have no responsible position in this matter. 

_"This particularly rapid, unintelligible patter, isn't generally heard, and if it is, it doesn't matter."_


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## inkahauts

James Long said:


> Well, I, for one, I'm glad that you have no responsible position in this matter.
> 
> _"This particularly rapid, unintelligible patter, isn't generally heard, and if it is, it doesn't matter."_


Its not new evidence in the past infringement... It wasn't around then. I think the question here is, is the new software proof that Dish is no longer infringing and there for should not be held in contempt for not complying because the units are no longer using infringing software, which is what the injunction was against, yes?.... I don't think it should be considered NEW evidence. I think it should simply be considered evidence of compliance....

The way I see it Dish owes Tivo no matter what, the question is how much, and does it still owe and for how much longer?


----------



## James Long

The only reason to see the new software as new evidence in the old case is if they can somehow get the injunction changed. If not ... it is evidence that they are no longer infringing and their DVRs are more than colorably different than the ones named in the injunction.


----------



## inkahauts

James Long said:


> The only reason to see the new software as new evidence in the old case is if they can somehow get the injunction changed.


I wouldn't see the point in that even if they get the injunction changed. It has no effect on whether or not Dish ever used the infringing software. Its not like patent law says that you can steal a patent for x amount of days without penalty...

I think that the judge would only talk about new software ever if it is in regards to still infringing vs. not..... I see no legal way that the new software could possibly effect the past infringements of Dish, as found by the jury and therefor has absolutely nothing to do with Dish ever trying to get anything overturned.


----------



## davemayo

bobcamp1 said:


> Not to go too far off topic, but this is a topic that could make it all the way to the Supreme Court. It's double-dipping, and numerous companies have been complaining about it for a long time.


This issue, patent exhaustion, is currently before the Supreme Court in LG v. Quanta.


----------



## jacmyoung

inkahauts said:


> I wouldn't see the point in that even if they get the injunction changed. It has no effect on whether or not Dish ever used the infringing software. Its not like patent law says that you can steal a patent for x amount of days without penalty...
> 
> I think that the judge would only talk about new software ever if it is in regards to still infringing vs. not..... I see no legal way that the new software could possibly effect the past infringements of Dish, as found by the jury and therefor has absolutely nothing to do with Dish ever trying to get anything overturned.


I generally agree which was why I kept saying only if DISH wanted to use the motion for reconsideration option then they would use the new software code as new evidence. But I did not think they needed to go that route at all.

But as long as we are discussing the issue of motion to reconsider a prior order, you can not say the new software can not be a new evidence, because the old software code were used as evidence to produce the order. Can't have it both ways. The old software codes were used as evidence to find DISH in violation, of course the new software codes must be allowed to be considered as new evidence. Whether the new evidence is a valid one or not is for the judge to decide, but don't say it can not be a new evidence.

As for the timing of the new evidence, if I understand it correctly Greg and Curtis were saying it should have been introduced before the judgment/order, not after, but if new evidence must always be introduced prior to the order, why have this thing called motion to reconsider to begin with? If you read the law, the purpose of motion to reconsider is precisely so new evidence can be intruduced after the order, not before, otherwise there will be no need for motion to reconsider.

At this time DISH is not even trying to get anything overturned, they are only trying to tell the judge they are in compliance, not in contempt. The hardware verdict was already overturned for them by the appeals court.

All DISH is saying now their new software also no longer infringes. So they are in compliance with the injunction order. Simple as that.


----------



## BNUMM

I believe they are talking about evidence that existed before the original trial but was missed for some reason.


----------



## gully_foyle

James Long said:


> I'm reasonably sure DISH can disable the DVR functions ... but will they? Bob's point wasn't that DISH could not disable DVRs but that no one other than DISH can disable DISH's DVRs.
> 
> It is the "armed marshals with guns" statement. Judge Folsom can do a lot as a judge but he can't physically disable millions of DVRs. That would take DISH's cooperation.


"Cooperation" can be like "please do this" or it can be like the US Marshal's Service taking possession of the ground stations. Or it can be the CEO and such in the slammer for contempt for as long as it takes.

Do you seriously argue that DISH can thumb its nose at a Federal court and not expect severe (and perhaps existential) consequences? Does DISH have no stockholders? I'd be rips**t if this was a company I owned some of.


----------



## jacmyoung

BNUMM said:


> I believe they are talking about evidence that existed before the original trial but was missed for some reason.


By reading what Curtis researched, it does not limit when the new evidence must existed. But I see your point, and I never seriously considered motion to reconsider an option anyway. There is no need to change the order, DISH believes it is in compliance with the order and they will try to prove it in a contempt hearing.


----------



## gully_foyle

Curtis52 said:


> Evidence of what exactly. There is no evidence that Dish has even developed software using the patent. There is no requirement to demonstrate that a patent even works. Besides, the media switch and indexing aren't even mentioned in the claim Dish infringed. That stuff is in the hardware claims.


Nor is there evidence that even if it works, it is used in one or all DVRs mentioned. Might claim hardware not present. Might work and yet still be found to infringe. Assuming that some patent application has even been made.


----------



## BNUMM

Patent Application does exist.
20080056682 Method and apparatus for receiving, storing, and presenting multimedia programming without indexing prior to storage
http://appft1.uspto.gov/netacgi/nph...ND&d=PG01&s1=echostar&OS=echostar&RS=echostar


----------



## Curtis52

jacmyoung said:


> But as long as we are discussing the issue of motion to reconsider a prior order, you can not say the new software can not be a new evidence, because the old software code were used as evidence to produce the order.


The whole point of the case law I quoted was that there needs to be finality in judgments. The case can't be retried every time the defendant says they've revised the software. The evidence would have to be overwhelming and obvious on its face that the new software doesn't infringe to reconsider the injunction. There is no such evidence.


----------



## jacmyoung

Curtis52 said:


> The whole point of the case law I quoted was that there needs to be finality in judgments. The case can't be retried every time the defendant says they've revised the software. The evidence would have to be overwhelming and obvious on its face that the new software doesn't infringe to reconsider the injunction. There is no such evidence.


Unfortunately having a finality was not the whole point of that case law, there was another point, that was if new evidence exsits, it can be justification for motion to reconsider.

But that wasn't even something to debate about, because I don't think DISH is even going to try that. DISH is saying they are in compliance with the injunction order, why?

Because their new software no longer infringes, and their hardware never infringed in the first place as far as this trial is concerned.


----------



## Greg Bimson

jacmyoung said:


> As for the timing of the new evidence, if I understand it correctly Greg and Curtis were saying it should have been introduced before the judgment/order, not after, but if new evidence must always be introduced prior to the order, why have this thing called motion to reconsider to begin with? If you read the law, the purpose of motion to reconsider is precisely so new evidence can be intruduced after the order, not before, otherwise there will be no need for motion to reconsider.


New evidence. Like at a murder scene, where two people are convicted of killing a police officer. Yet upon reviewing the tapes of an ATM machine a year later produces a third person, the only one that shot the police officer. That's new evidence.

New evidence is based upon the events that occurred during a given timeline. That is what is tried. People are forgetting that DISH/SATS was found guilty of willful infringement of the Time Warp patent. There isn't any "new evidence" to support a reversal of that verdict.

What you are all looking for is a show-cause order. The judge would ask the defendant why they should not be the subject of an injunction. No longer infringing would be a reason to cease an injunction.

But what you are all forgetting is that the injunction is based upon PAST INFRINGEMENT. It is up to DISH/SATS to prove the new software does not infringe. Therefore the judge could simply stay the injunction so DISH/SATS can continue on selling and have their customers use the functions of their DVR's. The judge could also schedule a hearing to determine infringement of the new software and keep the injunction active and in full effect.


jacmyoung said:


> At this time DISH is not even trying to get anything overturned, they are only trying to tell the judge they are in compliance, not in contempt. The hardware verdict was already overturned for them by the appeals court.


In compliance with what? This is the point that frustrates me. There are no compliance terms in the injunction order to lift the injunction.


jacmyoung said:


> All DISH is saying now their new software also no longer infringes. So they are in compliance with the injunction order. Simple as that.


Not that simple. The compliance terms of the injunction order are to stop selling 501, 508, 510, 625, 721, 921 and 942 receivers. DISH did stop selling the last three in the list. Why? Because they didn't update the software. But a receiver running old software on the 721 and a receiver running the new software on the 510 are no longer to be sold, and that is the compliance in the injunction we have been discussing the entire time.

And still not that simple, because no one knows whether or not the new software infringes. Yet TiVo has been awarded a positive decision in a court of law because another party was found guilty of infringement on TiVo's patents. The court system is supposed to hold everything up while DISH/SATS gets their crap in order to fight this injunction, because they were found guilty?


----------



## jacmyoung

Greg Bimson said:


> ...New evidence is based upon the events that occurred during a given timeline. That is what is tried. People are forgetting that DISH/SATS was found guilty of willful infringement of the Time Warp patent. There isn't any "new evidence" to support a reversal of that verdict.


So long as you still wanted to argue on this issue, let me inform you that there is in fact new evidence you try to seek, that new evidence is that the hardware verdict was reversed. Keep in mind when the order was handed down, both software and hardware verdicts were produced, and the order followed based on both, but now we know the hardware verdict was overturned. Can you not see it as a new evidence?



> What you are all looking for is a show-cause order. The judge would ask the defendant why they should not be the subject of an injunction. No longer infringing would be a reason to cease an injunction.


Correct, and that is what DISH is trying to show, that their new software no longer infringes, and their hardware never infringed. But according to you and Curtis, DISH simply can not show those, because the injunction did not allow them to show those? DISH does not need the injunction to allow them to show that they no longer infringe. They just have to show, and if the judge agrees, they will not be in contempt. The injunction does not have to be ceased, as long as DISH is not in contempt, that is all DISH needs.



> But what you are all forgetting is that the injunction is based upon PAST INFRINGEMENT. It is up to DISH/SATS to prove the new software does not infringe. Therefore the judge could simply stay the injunction so DISH/SATS can continue on selling and have their customers use the functions of their DVR's.


Now we are getting somewhere.



> The judge could also schedule a hearing to determine infringement of the new software and keep the injunction active and in full effect.


Of course he can, and while he is doing so DISH's DVR's continue to work. And if after the hearing the judge agrees with DISH, DISH is not in contempt, if he disagrees with DISH, DISH will appeal. Meanwhile DISH's DVR's continue to work. And since DISH is so confident their new software no longer infringes, that is what they will argue and appeal if necessary.



> In compliance with what? This is the point that frustrates me. There are no compliance terms in the injunction order to lift the injunction.


Of course there are compliance terms, not to lift the injunction, rather so not in contempt of it. One of such terms is if the software no longer infringes, the other of such terms is the hardware no longer infringes, which it never did.

But according to you and Curtis, even if DISH can prove their new software no longer infringes, and BTW their hardware never infringed, that is still not enough?


----------



## Greg Bimson

It's all in the semantics, and trust me, I've been tied up in the semantics before...


jacmyoung said:


> So long as you still wanted to argue on this issue, let me inform you that there is in fact new evidence you try to seek, that new evidence is that the hardware verdict was reversed. Keep in mind when the order was handed down, both software and hardware verdicts were produced, and the order followed based on both, but now we know the hardware verdict was overturned. Can you not see it as a new evidence?


Part of a verdict was reversed and remanded back to District Court. This does not constitute new evidence. So, keep in mind that when the decision was handed down from the Court of Appeals, the COURT OF APPEALS SPECIFIED THE INJUNCTION SHOULD STAND, AS WRITTEN. The Court of Appeals then removed the stay on the existing injunction. You are arguing about a problem where hardware claims were reversed and remanded, while the software claims were upheld AND THE INJUNCTION WAS ALREADY REVIEWED AND UPHELD. You are still arguing about the decision the Court of Appeals already reviewed.


jacmyoung said:


> Correct, and that is what DISH is trying to show, that their new software no longer infringes, and their hardware never infringed. But according to you and Curtis, DISH simply can not show those, because the injunction did not allow them to show those?


Yep.


jacmyoung said:


> DISH does not need the injunction to allow them to show that they no longer infringe. They just have to show, and if the judge agrees, they will not be in contempt. The injunction does not have to be ceased, as long as DISH is not in contempt, that is all DISH needs.


This one is all in the semantics of it. Under what grounds will DISH/SATS go to the court? There is nowhere in the injunction order that states, "and if you no longer infringe, you are not subject to this injunction."

What you are suggesting here is that the injunction should be changed. You are suggesting that DISH/SATS go back into court and get the injunction reworded, so they can continue to use DVR's which are currently not allowed for sale.

You are looking for some hearing or order to get the current injunction revoked or stayed. Good luck. New software will not do that. So DISH/SATS goes to the judge and asks for a rewrite of the injunction. Request denied. DISH/SATS appeals. THE APPEAL GOES TO THE SAME COURT THAT REVERSED THE JUDGMENT ON THE HARDWARE CLAIMS BUT UPHELD BOTH THE SOFTWARE CLAIMS AND THE INJUNCTION. Do you honestly think that the same Court of Appeals will even look at that?

And with this, what a couple of returns in a post will do. This one is my fault entirely, as the paragraph should read...


Greg Bimson said:


> What you are all looking for is a show-cause order. The judge would ask the defendant why they should not be the subject of an injunction. No longer infringing would be a reason to cease an injunction. But what you are all forgetting is that the injunction is based upon PAST INFRINGEMENT. It is up to DISH/SATS to prove the new software does not infringe. Therefore the judge could simply stay the injunction so DISH/SATS can continue on selling and have their customers use the functions of their DVR's. The judge could also schedule a hearing to determine infringement of the new software and keep the injunction active and in full effect.


I going to state the obvious here, because it is the obvious that is continually missing...

A show cause order would be when DISH/SATS would file a brief telling the judge why an injunction should not be entered.

Too late, the injunction is already entered and in full effect.


jacmyoung said:


> Of course there is compliance terms, not to lift the injunction, rather so not in contempt of it. One of such terms is if the software no longer infringes, the other of such terms is the hardware no longer infringes, which it never did.


It is a permanent injunction, jacmyoung. This isn't temporary. Of course, during a *settlement proceeding* TiVo can have the injunction lifted. But that would be when TiVo gets the licensing agreement they want.


----------



## Greg Bimson

And to relate this back to the distants case, the Court of Appeals mandated the lower court to issue a permanent injunction, because the law stated one must be entered.

Then DISH entered into a settlement agreement.

When came time for the case to wrap up back in Judge Dimitrouleas' court, he scheduled show-cause arguments as to why an injunction should not be entered. Amongst one of the arguments from DISH was that a settlement constituted new evidence in the proceedings. Nope. Rectifying the issue wasn't enough to avoid what the law prescribed.

Here, the injunction is already in full force. There will not be a show-cause hearing regarding the receivers listed as "Infringing Products". There aren't any material changes to the facts of this patent infringement case. The only way to rectify or remove the injunction is to *settle the case*.


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## jacmyoung

Greg Bimson said:


> ...Here, the injunction is already in full force. There aren't any material changes to the facts of this patent infringement case. The only way to rectify the injunction is to *settle the case*.


Since you are so on the side of this judge, let me offer a counter ballance to it.

This injunction is flawed and can not stand up to an appeal. The judge made two critical errors in this trial.

One he mistakenly instructed the jury not to produce a verdict on the equivalents if they produced a verdict on literal infringement on the hardware claim. When the jury returned both software and hardwre verdicts he constructed the injunction order based on both.

As a result when the hardware verdict was reversed on appeal, it was over, the hardware no longer infringes.

But he followed with the second critical error, he totally ignored the hardware verdict reversal, entered the injunction as if the hardware verdict still stood.

And it is because of these two errors, it is my belief Tivo will have no choice but to eventually walk away with only the damages, nothing else. This trial as far as I am concerned is over for Tivo.


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## peak_reception

> At this time DISH is not even trying to get anything overturned, they are only trying to tell the judge they are in compliance, not in contempt. The hardware verdict was already overturned for them by the appeals court. --jacmyoung


 To me the "we're now in compliance your honor" argument makes the most sense for DISH to present in order to prevent further action [Summary Judgment on the hardware claims through the Doctrine of Equivalents] against even more DVRs (such as the all-important 622/722 models). It's a much more difficult sell to liberate the listed products already found to be infringing. It _*could *_rescue them from being shut down, or at least that seems reasonable if the new code is indeed found to be non-infringing, but certainly the damages from past infringement would still stand. That is just my own sense of what _seems_ reasonable. What happens in Judge Folsom's court may unfold entirely differently. dgordo (who comes across as a very sharp lawyer himself) will probably show up in another few posts and blow this whole 'what seems reasonable' house of cards down.

Furthermore, if this "new evidence" of compliance software was accepted by the court for further examination it opens a whole new can of worms. As jacmyoung says, there would be a lot of technical material to wade through which would probably necessitate yet more expert testimony, argument, and difficult analysis. Along with all the motions, stays, hearings, appeals, and inevitable judicial delays, it could be many months before a responsible ruling on whether the new software still infringes or not could be made. And if, after this further delay, the new code was still found to be infringing, DISH could say "Hold On! We're working up yet another code which definitely no longer infringes! We're working around the clock on it and can present it to you next Friday your honor." And so enters into evidence another 25 bankers boxes full of technical papers and the circus continues on and on. All the while, justice delayed is justice denied for the plaintiff. I can't imagine Judge Folsom will go down that road but I'm not a lawyer, maybe he will.

Lastly jacmyoung, the hardware verdict was *not* overturned by the appeals court. It was reversed and remanded.


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## phrelin

Still say this whole thing is now down to egos, money, and settlement opportunities. Both sides would be crazy not to find a settlement arrangement. But one or both might be crazy.


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## peak_reception

> This one is all in the semantics of it. Under what grounds will DISH/SATS go to the court? There is nowhere in the injunction order that states, "and if you no longer infringe, you are not subject to this injunction." --Greg Bimson


True, there's nothing in the injunction to that effect. However, we do see in the courts many instances where judges perform their own "workarounds" of judicial declarations for whatever reasons. Apparently they have such power and are not shy about exercising it, especially so if this judge is modifying or finessing his own injunction. I can well imagine it happening.

As an aside, I remember many, many years ago when I represented myself in small claims court against an auto repair shop, I followed every judicial notice to the letter. The bench trial (or whatever it was called) was finally scheduled and official notice sent to me by certified mail. It stated the exact time and place of the proceeding _and that no alteration of the schedule was possible under any circumstance_. Of course I took that literally and showed up exactly as instructed, only to be blithely informed on arrival that the trial was rescheduled by request of the defendant's lawyer. No notice was sent to me at all. It really burned me up but no one cared.

Anyway, back to Judge Folsom. I've read lots about how "biased" against DISH he is, and what a Meanie he is. But if you read the "Final and Permanent" injunction (which even I am no longer convinced is either final nor permanent) Judge Folsom is the one who modified and mitigated the jury's verdict down from "willful infringement" as follows:



> The jury in this case found EchoStar's infringement to be willful, but the court [Judge Folsom], finding that EchoStar did not act in bad faith, and that this is not an "exceptional case," has determined that there should be no enhancement of damages and no award of attorneys fees pursuant to 35 U.S.C. Sections 284 and 285.


 So the jury wanted even tougher sanctions against E* after hearing all the evidence. Judge Folsom might not be as hard on E* as some imagine he will be. Or maybe he'll just follow the letter of the law. Only time will tell.


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## Herdfan

phrelin said:


> Still say this whole thing is now down to egos, money, and settlement opportunities. Both sides would be crazy not to find a settlement arrangement. But one or both might be crazy.


The problem is that the egos will get in the way of settlement opportunities. Charlie is one hard-headed SOB, but remember, TiVo tried to keep the upper hand in their negotiations with D* and that hasn't worked out so well for them either.


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## Curtis52

jacmyoung said:


> This injunction is flawed and can not stand up to an appeal.


The appeals court just blessed it.



jacmyoung said:


> But he followed with the second critical error, he totally ignored the hardware verdict reversal, entered the injunction as if the hardware verdict still stood.


The judge didn't lift a finger. He has done nothing on the case for 2 years. The appeals court reinstated the injunction. This has been explained to you several times.


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## Greg Bimson

jacmyoung said:


> This injunction is flawed and can not stand up to an appeal.


Judge Folsom issued the injunction along with the Final Judgment on 8 September, 2006, and did not issue a stay. The next day, the Court of Appeals issued a stay on the injunction. Once the Court of Appeals was fininshed with their review, their decision stated:


> The district court's injunction was stayed during the course of these proceedings. The stay that was issued pending appeal will dissolve when this appeal becomes final.


So to say that the injunction cannot stand up to an appeal is just an outright lie. The injunction already stood up to an appeal.


jacmyoung said:


> One he mistakenly instructed the jury not to produce a verdict on the equivalents if they produced a verdict on literal infringement on the hardware claim. When the jury returned both software and hardwre verdicts he constructed the injunction order based on both.


And then stated that the likelyhood of DISH/SATS winning all claims on appeal was so slim that Judge Folsom, the one who entered the injunction on 8 September, 2006, would not enter a stay of the injunction.


jacmyoung said:


> But he followed with the second critical error, he totally ignored the hardware verdict reversal, entered the injunction as if the hardware verdict still stood.


Date of entered injunction: 8 September, 2006.
Date of Court of Appeals decision: 31 January, 2008.

Judge Folsom entered the injunction before the Court of Appeals ruled on it. The Court of Appeals is the one that let the injunction stand, AS IS, by not changing a single word of the injunction and by removing the stay so the injunction would be in full effect. Judge Folsom didn't have to do anything, as Curtis states.


----------



## Teagore

phrelin said:


> Still say this whole thing is now down to egos, money, and settlement opportunities. Both sides would be crazy not to find a settlement arrangement. But one or both might be crazy.


Here's a settlement...E* buys Tivo!


----------



## puckwithahalo

> Here's a settlement...E* buys Tivo!


I think I could hear the cable companies' screams of agony from here if that happened *evil grin* i like that idea


----------



## bobcamp1

Curtis52 said:


> That isn't evidence that they have developed non-infringing software. It would require a rehearing to determine that. Dish should have asked for provisions in the injunction allowing a work-around prior to judgment. They missed the boat.


Huh? That's not how injunctions work. The lawyers don't help the judge write injunctions. Injunctions have to be very narrow in scope and very clear and very concise (except for "colorably different", which has been challenged in the past but upheld). Everyone (well, not everyone in THIS thread) knows that the judge can dissolve or change the injunction anytime he wants to. For example, if Tivo and E* did settle now, or E* bought Tivo, or the patent office were to dissolve the claim, he would dissolve the injunction. There is nothing in the injunction saying that, it's just implied. He can dissolve an injunction for any reason he wants (well, any reason that would stand on Tivo's appeal).

The question is, will he eventually remove the injunction based on the (assumed for now) fact that E* no longer infringes? E* has a few ways to introduce this new information to the judge. If E* succeeds, there will be another long hearing involving experts from both sides for E* to show how the new code is different before the judge does anything. He may stay the injunction during this period, but based on previous behavior that isn't likely. And it doesn't matter, because E* is going to claim they aren't violating it and they won't take any further action during this time. This decision would be appealed by the losing party.

However, the unofficial purpose of an injunction is to force a settlement. There is no settlement yet. So the judge may simply deny E*'s request to dissolve/modify the injunction even though they no longer claim to infringe. He can state that the fines plus the injunction were the punishment for infringing the patent up until now, and it doesn't matter what happened after the original judgment because the DVRs are supposed to be disabled and not sold by now anyway. That decision would be appealed by E*. The Appeals Court would then hear for the first time the fact that there may no longer be any infringement, and they could potentially stay or dissolve the injunction, and/or force the District Court to hold the hearing. If somebody dissolves the injunction, they may also then find that E* never violated the original injunction, and so they do not have to pay the additional fines. Or not.

Remember, the original injunction was upheld by the Court of Appeals because E*'s *original *software was infringing. The Court of Appeals was only allowed to look at the evidence presented during the trial. It would take another appeal of another district court decision involving the new software before they can even consider the fact that there may be new software.

However, IMO, in this specific moment in time, E* will be violating (after the 30 day period) the injunction. So what. It's just more money they might have to pay, and they may even get it back if they are lucky.

Finally, if the hardware does end up infringing, the injunction will return. And E* won't be able to wiggle out of it.


----------



## scooper

So do I - poison pill or not, it might be the cheap way to end this for Echostar.


----------



## Teagore

To me this whole thing is stupid. (from what i understand of it.) I might be coming out of left field but take for example dvd players. More then one company made them, and they all use lasers. Well, the first company to come out with one didn't sue everyone else because theirs used lasers too! I know it's probably more complicated then that but what should E*have used..MEMORY STICKS???


----------



## Curtis52

bobcamp1 said:


> The question is, will he eventually remove the injunction based on the (assumed for now) fact that E* no longer infringes?


"The Fifth Circuit has held that a motion for reconsideration "is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or raised *before the entry of judgment*." Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)."

"To succeed on a motion for reconsideration, a party must "'clearly establish either a manifest error of law or fact or must present newly discovered evidence."


----------



## Greg Bimson

Teagore said:


> I might be coming out of left field but take for example dvd players. More then one company made them, and they all use lasers.


All manufacturers of DVD players license a patent to produce their DVR's.

That is why the HD-DVD and Blu-ray battle was so important. With one standard (blu-ray), I believe everyone pays Sony to license the manufacture of a blu-ray system. Feel free to correct me if I'm wrong. Heck, in this thread, feel free to correct me if I'm right.


----------



## Herdfan

Greg Bimson said:


> That is why the HD-DVD and Blu-ray battle was so important. With one standard (blu-ray), I believe everyone pays Sony to license the manufacture of a blu-ray system. Feel free to correct me if I'm wrong. Heck, in this thread, feel free to correct me if I'm right.


Not sure WHO gets the royalty, but someone is. IIRC, it is a group that co-developed the blue laser technology and Sony is one of them. It was important for Toshiba since they developed most of the HD DVD format and stood to get royalties from it.


----------



## Greg Bimson

BobCamp1 said:


> However, IMO, in this specific moment in time, E* will be violating (after the 30 day period) the injunction.


The 30 day period is only for disabling DVR functionality. The moment the injunction was in force and full effect, it prohibited DISH/SATS from "making, using, offering to sell, selling, or importing into the United States," the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942, and, "all other products that are only colorably different therefrom in the context of the Infringed Claims." There isn't a 30 day period for this part of the injunction; it is immediate.

DISH/SATS' argument appears to be a bit weak. DISH/SATS has stopped sales of the 721, 921 and 942 (along with the possibly not colorably different Homezone 1022) because they did not update the software.

Pay close atttention to this paragraph:

DISH/SATS understands they need to stop sales of infringing products. Because they did not update the software on the four products mentioned earlier, DISH/SATS has stopped selling those products because they still infringe. However, the injunction says to cease sales of "Infringing Products", which has been defined as the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942. DISH/SATS must also stop selling any product only colorably differen therefrom in the context of the Infringed Claims.


----------



## TBoneit

Curtis52 said:


> There probably are not enough still in service to go to the bother of going after the Dishplayer. The software is probably dissimilar enough to current DVRs that inclusion in the trial would have confused the jurors.


This dang thread has been very active.

I have to believe the number still in service has no bearing on the matter. If they infringed and were sold then penalties would apply AFAIK.

That it could have confused jurors is possible as is the possibilty that the Dishplayers did not infringe.


----------



## Curtis52

TBoneit said:


> This dang thread has been very active.
> 
> I have to believe the number still in service has no bearing on the matter. If they infringed and were sold then penalties would apply AFAIK.
> 
> That it could have confused jurors is possible as is the possibilty that the Dishplayers did not infringe.


The Dishplayer wasn't even listed on the jury form. No specific players were listed.


----------



## scooper

Greg Bimson said:


> DISH/SATS understands they need to stop sales of infringing products. Because they did not update the software on the four products mentioned earlier, DISH/SATS has stopped selling those products because they still infringe. However, the injunction says to cease sales of "Infringing Products", which has been defined as the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942. DISH/SATS must also stop selling any product only colorably differen therefrom in the context of the Infringed Claims.


So from this action we should conclude that Dish/SATS believes the new software is more than colorably different.

Either that, or the well is going to dry up real quick.

And if they are found to be still infringing - katie bar the door - because there will be ALOT of DVR users wanting a working replacement and wanting it NOW (including me).

Any takers ?


----------



## Curtis52

scooper said:


> So from this action we should conclude that Dish/SATS believes the new software is more than colorably different.


The injunction doesn't say "if you think you no longer infringe, you don't need to shut down any DVRs".

It says you *will* shut down "Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


----------



## phrelin

Now if they just will shut down my two old 508's so I can get a second 722....:sure: 

With my luck, they won't have too.


----------



## Greg Bimson

scooper said:


> So from this action we should conclude that Dish/SATS believes the new software is more than colorably different.


I think that is the wrong conclusion, because of an assumption. Because DISH/SATS has stated they are continuing to sell the listed DVR's with new software, that they believe those receivers do not fall under the terms of the injunction.

It could be because DISH/SATS believes the new software makes the listed receivers colorably different. But that is open to interpretation.

What is not open to interpretation is the wording of the standing injunction, which states sales of those listed receivers must be stopped. So obviously, DISH/SATS will fight that. Whether it is because DISH/SATS believes the receivers are colorably different or the injunction should be changed is the gray area. Those of us taking the literal read on what the court could do are stating there isn't much leeway in having a standing injunction reworded or changed.

If anyone wants to see the playbook of how DISH/SATS will fight this, look no further than what both jacmyoung and James Long are trying to claim. I just think those arguments will be stopped before they even get started, simply because DISH/SATS has not completely complied with the injunction.

And stating the injunction is wrong is not an option. It has already been considered directly by four judges, and then the rest of the bench of the Court of Appeals denied to hear the _en banc_ request. The only true forum for relief from this injunction is at the Supreme Court.


----------



## jacmyoung

bobcamp1 said:


> ...However, the unofficial purpose of an injunction is to force a settlement. ...


And the official purpose of an injunction is to prevent future infringement, that is the goal and the only goal of an injunction.

If we can all agree on that, then we must also agree once such goal is met, meaning the court is satisfied with the goal of the order it issued, then the party under injunction can not be found in contempt of such order.

So I will go back and say that again, when DISH tells the judge 1) our new software on longer infringes, and 2) our hardware never infringed. That should satisfy that no "future" infringement will ocurr. Of course the judge can decide if the new software claim is true or not, but if he agrees with DISH, then the goal of the injunction is satisfied, therefore DISH will not be in contempt.

I know some of you believe the language of the injunction must be followed to the teeth or else. Which I disagree.

Now some argue that the appeals court did bless the injunction, so it must have blessed everyword of it. I beg to differ.

The appeals court did reverse the hardware verdict, but since it also upheld the software verdict it decided to bless the injunciton, because the appeals court is not in the business to modify the injunction. But the appeals court did ask the parties to address the issue of the hardware infringement, because it is relavent to the injunction and damages at hand.

The parties should have taken the appeals court advice and addressed that issue, unfornunately they did not. As a result half of the guilty verdict is removed, DISH is now only gulity of half of the violation, yet they are continued to be asked to pay for the full violation which they only are guilty in half of it. The punishment no longer fits the crime. That is where an opening exists for DISH to appeal, if Tivo should ask for a contempt ruling from the judge, and if judge should issue such ruling.

DISH can go to the appeals court and say the judge ignored your ruling on the hardware claim, he did not address it as you asked him to, not only that he also did not modify the injunction to reflect your ruling of not guilty on the hardware violation, which you again asked him to reconsider but he did not. As a result, the current injunction must be overturned. The appeals court may ask the judge to reconsider a new injunction to reflect the reality, that is that only the software infringed, not the hardware.


----------



## Curtis0620

An injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. *The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court's order.* In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences or death.

From Wikipedia.


----------



## phrelin

Dish has issued a memo that does specify the units *Dish has excluded* from the order as follows:

DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722 can continue to be sold, installed and activated.
DVR models 721, 921, 942 and Homezone 1022 models that are already installed and activated are not subject to the injunction and can continue to be used by customers.
The only model not mentioned at all is the 612.

So y'all think Charlie is going to start dodging "them revenuers"?


----------



## scooper

I think Charlie (and his counterpart @ tivo) will let this play out in court where it belongs, and then we will see where the chips fall. Anything else we say here is pure, idle speculation.


----------



## Greg Bimson

jacmyoung said:


> So I will go back and say that again, when DISH tells the judge 1) our new software on longer infringes, and 2) our hardware never infringed.


And the judge is supposed to take the word of a convicted infringer? DISH/SATS does not get the presumption of innocence.


jacmyoung said:


> DISH can go to the appeals court and say the judge ignored your ruling on the hardware claim, he did not address it as you asked him to, not only that he also did not modify the injunction to reflect your ruling of not guilty on the hardware violation, which you again asked him to reconsider but he did not.


The Court of Appeals reversed the infringement on the hardware claims and told TiVo that if they'd like to press on with those claims, they can be decided by the District Court. However, the Court of Appeals did not ask the District Court to modify the injunction. If the Court of Appeals wanted the injunction modified, they would have issued a permanent stay on the injunction and told the District Court to rewrite it. Heck, the Court of Appeals could have rewrote it themselves.

Instead, the Court of Appeals is fine with the injunction. So if DISH/SATS tells the District Court judge he needs to rewrite the injunction because the Court of Appeals said so, then the defense lawyers received their degrees from Frito Lay in the form of a prize in a Cracker Jack box.

So the case was remanded back to the District Court, reversing the hardware claims, but affirming the software claims and reinstating the injunction.

Any ideas what the first course of action should be back at District Court? I'll give you a hint, it is the only open item on the list. Once that is settled in some manner, any perceived issues with the rest of the judgment can take place.

That is why the hardware claim will most likely be addressed.


----------



## jacmyoung

Greg Bimson said:


> And the judge is supposed to take the word of a convicted infringer? DISH/SATS does not get the presumption of innocence....


DISH never asked such so please don't use your strawman's argument. DISH will present its evidence of the new software and the judge will have to decide.

I am not lawyer so I do not know to what extent the appeals court can modify an injunction issued by the district court, I don't think it is the appeals court's business to design a injunction for the judge, they either overturn the inunction or uphold it. It is the judge's job to modify his own injunction to reflect the reality.

And a new injunction may look something like this, DISH will be enjoined from selling, promoting, using or profiting from the use of the infringing DVR software described during the trial, and/or any other software that are only colorably different from the said software.

The new injunction will not be able to include any DISH hardware because they never infringed as far as this trial is concerned.


----------



## Curtis0620

phrelin said:


> Dish has issued a memo that does specify the units *Dish has excluded* from the order as follows:
> 
> DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722 can continue to be sold, installed and activated.
> DVR models 721, 921, 942 and Homezone 1022 models that are already installed and activated are not subject to the injunction and can continue to be used by customers.
> The only model not mentioned at all is the 612.
> 
> So y'all think Charlie is going to start dodging "them revenuers"?


Since when can DISH change a court order?


----------



## peak_reception

Greg Bimson says:


> The 30 day period is only for disabling DVR functionality. The moment the injunction was in force and full effect, it prohibited DISH/SATS from "making, using, offering to sell, selling, or importing into the United States," the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942, and, "all other products that are only colorably different therefrom in the context of the Infringed Claims." There isn't a 30 day period for this part of the injunction; it is immediate.


 Thank you for clearing that up.


----------



## Greg Bimson

jacmyoung said:


> DISH never asked such so please don't use your strawman's argument. DISH will present its evidence of the new software and the judge will have to decide.


Talk about circular arguments. You are stating that DISH will somehow wedge the discussion of their new software within a contempt hearing. Contempt hearings are to determine whether or not a party has violated a standing order. There may be gray areas in a standing order, but the cessation of sales of listed receivers isn't one of them.

You have stated that the current injunction is invalid and it is not. DISH has already complied by ceasing sales of the 721, 921, 942 and 1022 DVR's, as listed in the injunction. DISH complied by sending out the injunction order to their business parties, as listed in the injunction.

DISH/SATS has complied with all aspects of the injunction they've stated is in full force and effect, except one: stop selling the DVR's listed on the injunction order, and any other device that infringes (the not colorably different language). Who knows what happens when the time clock runs out on the 30 days to shut down the listed receivers? I'll assume that DISH/SATS legal team will try to test that part of the injunction.

Change a standing injunction. What good is a standing injunction if it can be changed by the infringer? Injunctions are a tool to force settlements. It hasn't happened here.

The worst part is suggesting DISH/SATS appeal a negative decision regarding the new software to the same Court of Appeals that let the injunction stand.

It is extraordinary what lengths the arguments reach. TiVo isn't entitled to a shut down nor continuing damages nor a license agreement. DISH/SATS can stonewall. If denied on the claim that their new software doesn't infringe, they'll win this somewhere so that the injunction doesn't apply. Whatever happens, nothing will happen to DISH/SATS.


----------



## Curtis52

Greg Bimson said:


> DISH/SATS has complied with all aspects of the injunction they've stated is in full force and effect, except one: stop selling the DVR's listed on the injunction order, and any other device that infringes (the not colorably different language).


They haven't sent a copy of the injunction to their subscribers. That's also required immediately. They just sent a copy to their dealers.


----------



## phrelin

Curtis52 said:


> They haven't sent a copy of the injunction to their subscribers. That's also required immediately. They just sent a copy to their dealers.


That'll happen right *after* they turn them off which appears right now to be planned for never.


----------



## mattfast1

The 612 (or 722) was never part of the lawsuits. They were released AFTER TiVo filed suit.


----------



## jacmyoung

Greg Bimson said:


> Talk about circular arguments. You are stating that DISH will somehow wedge the discussion of their new software within a contempt hearing. ...


That is exactly what DISH will do. During a contempt hearing, both sides will be allowed to produce new evidence, and their own experts to argue on their behalf, and the judge will hear the arguments and look at the evidence, and make a fair decision based on all those, that whether the party under injunction has been in contempt or not. And if the judge finds DISH in contempt, DISH can appeal. And during the appeal DISH can again present the evidence, and its argument in length. And there are ample past cases judges' contempt rulings were overturned on appeal.

You want people to believe that during the contempt hearing no one can bringing in any evidence, if that is the case you are seriously wrong. Please don't spread a wrong idea.


----------



## Greg Bimson

Curtis52 said:


> They haven't sent a copy of the injunction to their subscribers. That's also required immediately. They just sent a copy to their dealers.


Is that one of those "grey area" issues? I didn't see subscribers or end users listed as a party to notify in the injunction.


----------



## phrelin

mattfast1 said:


> The 612 (or 722) was never part of the lawsuits. They were released AFTER TiVo filed suit.


That's what makes it weird. Dish mentions the 722 in the memo but not the 612. There are hardware differences between the 722 and the 622 beyond just the drive size, albeit minor in terms of the suit. But I thought the 612 was even more hardware different from the 622, so maybe that's why. And it sure appears they are using a different version of the firmware/software if the problems posted are any indication. So maybe the 612 was the test bed for an entirely revised software.

Love having an "idle speculation" thread.


----------



## jacmyoung

Curtis0620 said:


> Since when can DISH change a court order?


No one said DISH can change that order, but DISH can ask the appeals court to overturn that injunction, and I have already explained how that may happen and why it can happen.

And it happens a lot BTW.


----------



## Curtis0620

jacmyoung said:


> No one said DISH can change that order, but DISH can ask the appeals court to overturn that injunction, and I have already explained how that may happen and why it can happen.
> 
> And it happens a lot BTW.


According to their memo, they are.


----------



## jacmyoung

Curtis0620 said:


> According to their memo, they are.


That memo is not DISH saying we are changing the order, they can not, but what they are doing that may bring a contempt hearing if Tivo seeks so, and by that memo DISH has laid out its strategy as how they plan to argue in that contempt hearing, and if the judge doesn't buy them and rule them in contempt, how they will appeal such ruling, and how they will argue that such injunction must be overturned, among other things. And because DISH may argue that the injunction must be overturned due to judge's errors, if successful, they may not even have to prove their new software no longer infringes.

DISH of course did not say so explicitly but if you read between the lines, you will see its strategy in the open.


----------



## Curtis52

jacmyoung said:


> The appeals court did reverse the hardware verdict,


Since when did you start listening to judges?


----------



## bobukcat

Curtis52 said:


> A statement that "we don't infringe. We mean it this time. Really." isn't evidence.
> 
> Besides, they should have asked for work-around wording in the injunction before judgment. That's the point of what it says. There's a need for finality.


Funny how different people can see different meaning in the exact same paragraph. 

I would expect that E* is prepared to offer much more evidence than a statement that they don't infringe, I guess the question is will the judge be listening and, if so, is it sufficient for him to do something to exclude the injuction and change final damages based on the dates involved. Time will tell.....


----------



## Teran

Can the judge even decide if the new software infringes or not? Afterall, that is an issue of fact, not law.


----------



## jacmyoung

Curtis52 said:


> Since when did you start listening to judges?


You understand that borders on personal attack do you?


----------



## Curtis0620

bobukcat said:


> Funny how different people can see different meaning in the exact same paragraph.
> 
> I would expect that E* is prepared to offer much more evidence than a statement that they don't infringe, I guess the question is will the judge be listening and, if so, is it sufficient for him to do something to exclude the injuction and change final damages based on the dates involved. Time will tell.....


When will people realize that for the models listing in the injuction it is over. Period.

The newer models are the only ones that are in doubt. Are they colorably different? If Tivo goes after them and wins, DISH is up the creek. Party over.

They must settle with Tivo before it's too late.


----------



## jacmyoung

Teran said:


> Can the judge even decide if the new software infringes or not? Afterall, that is an issue of fact, not law.


Of course he can. What he can not do is do so immediately during a contempt hearing, in that hearing the law requires him to first determine if the new software is more than colorably different or not.

If he decides no, and finds DISH in contmept, DISH will appeal, if he finds yes, he can proceed to hold additional hearing to determine if the new software is infringing or not but this hearing will be lengthy, and while during such hearing he should stay the injunction.


----------



## Herdfan

While DISH may try to get the judge to do this or that and appeal this or that, as a general rule, how have DISH's attorneys faired in recent cases? Their record is approaching that of the French when it come to winning wars.


----------



## Curtis52

Teran said:


> Can the judge even decide if the new software infringes or not? Afterall, that is an issue of fact, not law.


"A contempt proceeding for violation of a patent infringement injunction will lie where the new and alleged offending device is merely 'colorably' different from the enjoined device or from the patent. In American Foundry & Mfg. Co. v. Josam Mfg. Co., supra, this Court held, 79 F.2d at 117:10

'As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"

link


----------



## Curtis0620

jacmyoung said:


> Of course he can. What he can not do is do so immediately during a contempt hearing, in that hearing the law requires him to first determine if the new software is more than colorably different or not.
> 
> If he decides no, and finds DISH in contmept, DISH will appeal, if he finds yes, he can proceed to hold additional hearing to determine if the new software is infringing or not but this hearing will be lengthy, and while during such hearing he should stay the injunction.


Colorably different only applies to other models not listed. For the specifically identified models, it's over.

Since when does permanent not mean permanent. You are refering to a preliminary injunction, which this is not.


----------



## jacmyoung

Herdfan said:


> ...Their record is approaching that of the French when it come to winning wars.


A fair comparison, except you forgot French are still enjoying wine and food, among other things


----------



## phrelin

Herdfan said:


> While DISH may try to get the judge to do this or that and appeal this or that, as a general rule, how have DISH's attorneys faired in recent cases? Their record is approaching that of the French when it come to winning wars.


As the French have proven, you don't have to win the war to comfortably ignore everyone else.:sure:


----------



## Curtis52

This is hilarious. An MP3 podcast discussion on the injunction. Click on the MP3 link on the linked URL here .

The injunction talk starts at 13:56. It's pretty funny. The guy is clueless.


----------



## John W

Herdfan said:


> While DISH may try to get the judge to do this or that and appeal this or that, as a general rule, how have DISH's attorneys faired in recent cases? Their record is approaching that of the French when it come to winning wars.


Actually, with our help of course, they have won a couple big ones.


----------



## TulsaOK

John W said:


> Actually, with our help of course, they have won a couple big ones.


Why are there so many D* subs posting here?


----------



## James Long

:backtotop Tivo lawsuit (mostly speculation) ... not the French !!!


----------



## Curtis52

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

TIVO INC., §
§
Plaintiff, §
§
v. § 2:04-CV-1-DF
§
ECHOSTAR COMMUNICATIONS §
CORP., et al. §
§
Defendants. §

O R D E R

A mandate has been issued by the United States Court of Appeals for the Federal Circuit

in the above captioned case. Dkt. No. 821. The Court hereby SETS this matter for status

conference on May 30, 2008 at 10:00A.M. in TEXARKANA.

Plaintiff shall submit to the Court by letter, the topics of discussion for the status

conference and the relief sought by May 16, 2008. Defendant shall by letter, respond and advise

on any additional matters by May 23, 2008.

IT IS SO ORDERED.

Case 2:04-cv-00001-DF-CMC Document 822 Filed 04/23/2008 Page 1 of 1


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## scooper

So Tivo filed SOMETHING with the appeals court. Interesting.


----------



## jacmyoung

scooper said:


> So Tivo filed SOMETHING with the appeals court. Interesting.


If so it can't be request for contempt hearing, can it? Sounded to me this might be to address the additional damages.


----------



## James Long

Thanks Curtis ... Groundhog Folsom has popped his head out the hole and said five more weeks of speculation (although Tivo's filing should be public in three weeks).


----------



## James Long

scooper said:


> So Tivo filed SOMETHING with the appeals court. Interesting.


Tivo filed a cross appeal back when Echostar filed their appeal. This is nothing "new" at the appeals court level ... this is Judge Folsom noting the appeals court decision and setting a timetable to see if Tivo is happy with DISH's compliance (or wants to complain about a lack thereof).

BTW: Not a contempt hearing, just a status hearing ...


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## jacmyoung

James Long said:


> Thanks Curtis ... Groundhog Folsom has popped his head out the hole and said five more weeks of speculation (although Tivo's filing should be public in three weeks).


Never mind


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## James Long

It does not appear Tivo filed anything. This is just the court following up.


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## jacmyoung

James Long said:


> Tivo filed a cross appeal back when Echostar filed their appeal. This is nothing "new" at the appeals court level ... this is Judge Folsom noting the appeals court decision and setting a timetable to see if Tivo is happy with DISH's compliance (or wants to complain about a lack thereof).
> 
> BTW: Not a contempt hearing, just a status hearing ...


Are you saying that Tivo's filing was never public?

So we are still so far away from any possible contempt hearing request or can Tivo make its intention clear to the judge by 5/16?


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## Curtis52

The 30 days will be over by then for sure. Uh Oh


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## jacmyoung

James Long said:


> It does not appear Tivo filed anything. This is just the court following up.


Is it normal for the plaintiff not to file anything at this time? What are they waiting for? DISH is clearly not following the injunction order as stated. Are they waiting for a press release from DISH or something?

Sounded like Judge Folsom was trying to get Groundhog Tivo to popup instead.


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## Greg Bimson

It is a status hearing to follow-up on unresolved matters handed back down from the Court of Appeals.


jacmyoung said:


> Is it normal for the plaintiff not to file anything at this time? What are they waiting for? DISH is clearly not following the injunction order as stated. Are they waiting for a press release from DISH or something?


While you have stated what you believe DISH/SATS' course of action will be, you've forgotten there is another party to this case that may have a roadmap for their next moves.

For example, if I were TiVo, I'd wait to see if there were any other possible infractions DISH may commit before asking for a contempt hearing. Why mess with the injunction at this time, when there are still actions that DISH/SATS must complete in order to comply with the injunction. Non-compliance means more contempt charges.


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## peak_reception

> Groundhog Folsom has popped his head out the hole and said five more weeks of speculation


 :lol: Remember Job's example James.

Looks like it may be quite awhile before all is said and done....


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## peak_reception

> this is Judge Folsom noting the appeals court decision and setting a timetable to see if Tivo is happy with DISH's compliance (or wants to complain about a lack thereof).


 He might even start *griping *about something DISH is doing or not doing (probably not how much HD they're offering though :nono:


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## peak_reception

jacmyoung says:


> DISH is clearly not following the injunction order as stated.


 So we're all agreed on this point now at least, right?!


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## peak_reception

Idle Speculation of the Day Alert: I'm thinking about the speculation that DISH can simply buy out Tivo and be done with all of this. I doubt Tivo would agree to that unless it was for an astronomical sum. Miniscule chance. As for a hostile takeover I'm pretty sure there are laws to prevent a defendant from being swallowed up, and thereby thwarted in their action, by a plaintiff while in litigation. Obstruction of Justice or somesuch.


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## James Long

This is why the thread has been labeled "speculation" ... clear language from the court (broken out into points by me):
1) A mandate has been issued by the United States Court of Appeals for the Federal Circuit in the above captioned case. Dkt. No. 821.

2) The Court hereby SETS this matter for status conference on May 30, 2008 at 10:00A.M. in TEXARKANA.

3) Plaintiff shall submit to the Court by letter, the topics of discussion for the status conference and the relief sought by May 16, 2008.

4) Defendant shall by letter, respond and advise on any additional matters by May 23, 2008.

The COURT has received a mandate from the court of appeals. Not a complaint from Tivo, not a letter from Santa ... a mandate from the court of appeals. This is the event that triggered the actions being taken in this order.

The COURT is setting a status conference for the end of May. Not a contempt hearing, not a retrial on the hardware claims, just a conference to get the parties together.

The COURT is asking Tivo to set the agenda for the meeting ... and to set the agenda by May 16th. They are also asked to request any relief sought.

The COURT is asking Echostar to reply to Tivo's requested relief by May 23rd.

The COURT will get together with the parties on May 30th and talk.

That's it! Unless you see other filings that's what the court will be looking at.

*Speculation:*
1) Tivo will complain about DISH's continued use and sale of the named receivers and attempt to get all new receivers included in the injunction as "not colorably different".
2) E* will respond that they have complied with the terms of the injunction and that their current receivers are colorably different than the ones the injunction applies to.
3) People will continue to speculate until no one is listening to anyone and all we see are repeated posts from the same people saying the same thing with no one really listening.
4) On or about May 16th the death of Echostar will be predicted when Tivo's response to the court is released.
5) On or about May 23rd the death of Tivo will be predicted when Echostar's reply is released.
6) On or about May 30th we'll still see the same speculation that we have been seeing since January. And a judge will say something that may or may not change the speculation.


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## Herdfan

TulsaOK said:


> Why are there so many D* subs posting here?


Because I am a long-time TiVo sub (real TiVo's, not the DirecTiVos though I have a couple of them as well) and have 2 units with lifetime subs on them.

As a side note, why are there so few E* subs not raising hell with DISH for not doing whatever it takes to get this case settled. I know if I were an E* sub with one of these DVR's, or if D* were facing the same consequences, I would be sending letters the the CEO weekly complaining about possibly being hung out to dry.

I would think E* customers would be on edge regarding possible future developments.


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## Curtis52

peak_reception said:


> As for a hostile takeover I'm pretty sure there are laws to prevent a defendant from being swallowed up, and thereby thwarted in their action, by a plaintiff while in litigation. Obstruction of Justice or somesuch.


TiVo has a poison pill. It would be very expensive.


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## jacmyoung

Greg Bimson said:


> ...For example, if I were TiVo, I'd wait to see if there were any other possible infractions DISH may commit before asking for a contempt hearing. Why mess with the injunction at this time, when there are still actions that DISH/SATS must complete in order to comply with the injunction. Non-compliance means more contempt charges.


Actually that was what I speculated, but you predicted 50/50 Tivo will seek a summary judgment on the hardware before the 25-day expires, unless I read you wrong. What is your prediction now?


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## peak_reception

I have to say that's a pretty good summation James but in so doing are you getting ready to lock the thread in the interim?


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## jacmyoung

James Long said:


> *Speculation:*
> 1) Tivo will complain about DISH's continued use and sale of the named receivers and attempt to get all new receivers included in the injunction as "not colorably different".
> 2) E* will respond that they have complied with the terms of the injunction and that their current receivers are colorably different than the ones the injunction applies to....


I hope Tivo is not talking about the hardware on that meeting because last I checked none of the DISH hardware infringed, including those on the injunction list.


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## Herdfan

James Long said:


> *Speculation:*
> 
> 6) On or about May 30th we'll still see the same speculation that we have been seeing since January. And a judge will say something that may or may not change the speculation.


On or about May 30th Judge Folsom will tell DISH that if the DVR's indicated in the injunction are not shut off immediately, Charlie is going to jail.:eek2:


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## Curtis52

Maybe TiVo can drag it out a little further. They should be getting triple damages for the time period after the mandate was issued.


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## Greg Bimson

jacmyoung said:


> Actually that was what I speculated, but you predicted 50/50 Tivo will seek a summary judgment on the hardware before the 25-day expires, unless I read you wrong. What is your prediction now?


I've stated that the timetable of the court will determine what is done. I don't even know whether TiVo will seek summary judgment on the hardware claims, but that is my opinion what they should do. Reinstating infringement on hardware claims subjects every DISH DVR to the injunction, except the oldest 7100 and 7200 DVR's.

It is entirely possible on the current timetable that TiVo asks for a reinstatement of hardware claims and files a brief supporting that action on 16 May. At the same time, TiVo can also ask for a contempt hearing. However, I'd wait for that until after any discussion of the hardware claims, if there is any discussion.


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## Greg Bimson

Just for giggles, which will be easier: DISH/SATS getting a standing injunction overturned or TiVo getting hardware claims reinstated?


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## scooper

Curtis52 said:


> TiVo has a poison pill. It would be very expensive.


I'm aware of that. It still might be cheaper to swallow the poison pill.


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## mark722

Herdfan said:


> Because I am a long-time TiVo sub (real TiVo's, not the DirecTiVos though I have a couple of them as well) and have 2 units with lifetime subs on them.


Which brings up the question: Why are so many Tivo subs posting here? I know they have several of their own forums to spread their ill will against Dish. Could it be that they have more than a personal interest in the outcome of this trial. Let's say, trying to scare existing Dish customers into switching to another provider and buying a Tivo box. I'm sure that Tivo stock holders and employees would just love that. This is a Dish forum, not "Let's count the ways that Dish sucks and will go out of business" forum. This trial is just a bump in the road for Dish. They would not risk losing subscribers by having to be forced to turn off their DVRs. Any of these Tivo cheerleaders that say otherwise are just delusional.


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## HobbyTalk

I think they know if TiVo loses on grounds that the new software does not infringe that all TiVo can hope to get is 100M or so and that would just about be the end of their business. No other company would license their patents when they know they can get around them.


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## James Long

Herdfan said:


> As a side note, why are there so few E* subs not raising hell with DISH for not doing whatever it takes to get this case settled.


Defeated already? The problem for customers isn't DISH settling with Tivo ... it is DISH offering DVRs. There is still no sign that DISH will _ever_ stop offering DVRs. A lot of fear, uncertainty and doubt thrown around - but the DVRs are still working. Despite the "threats".



Curtis52 said:


> Maybe TiVo can drag it out a little further. They should be getting triple damages for the time period after the mandate was issued.


You hate DISH, don't you? What happened, did a DISH installer run over your puppy?

The courts will decide a proper penalty ... even if you want to seek a penalty fifty fold. DISH has rights here too.


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## Greg Bimson

How about the reverse of this? If no one posted that there are issues with this case that may affect DISH/SATS and their customers, this wouldn't be much of an information board, would it?

Think about it in the distants case. All of a sudden, the distants were shut down. Many of us discussing this case were also discussing the fact that DISH was facing an injunction to turn off the distant feeds. So if distant networks were important to you, and there was an injunction about to be issued, wouldn't you want to know the pertinent facts?

Same goes with this case. If there are people that want to run through with blinders on, or cheerlead and say this is no real issue, then I'll be there to state there are issues, and you need to know what they are. Anything less is a disservice to the community.


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## scooper

James Long said:


> Defeated already? The problem for customers isn't DISH settling with Tivo ... it is DISH offering DVRs. There is still no sign that DISH will _ever_ stop offering DVRs. A lot of fear, uncertainty and doubt thrown around - but the DVRs are still working. Despite the "threats".
> 
> You hate DISH, don't you? What happened, did a DISH installer run over your puppy?
> 
> The courts will decide a proper penalty ... even if you want to seek a penalty fifty fold. DISH has rights here too.


I've sure gotten that impression from both of the Curtises - they hate Dish for some unknown reason. Almost like they are "owners" of tivo, the company.


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## James Long

Greg Bimson said:


> How about the reverse of this? If no one posted that there are issues with this case that may affect DISH/SATS and their customers, this wouldn't be much of an information board, would it?


You're calling THIS thread information? There is information buried in this thread (and previous threads) but no, most of this isn't information. It is, as labeled, speculation.

If you want to deliver information then stick with actual facts ... not what may happen but what absolutely will happen. Have you done that so far? If you have - if you've never posted any speculation about what will happen - then I apologize for lumping you in with the rest of this thread as being just a load of fear, uncertainty and doubt.

The fact is that DISH DVRs are still working and that the company that actually controls whether or not they are working is standing behind their products.

And now back to the speculation and further predictions of the death of Echostar.


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## jmpfaff

Curtis52 said:


> "Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"


I'm not a lawyer, but when I read that, I can't help but conclude a contempt hearing isn't the next step for the 622/722 series. "Not colorably different" to me means the same thing in a new paint job with a new model number. If DISH/SATS really rewrote the software....even if the new software infringes....it takes more than a contempt hearing to determine if that new software also infringes.

And, if I understood the original injunction, DISH gets to leave 192K of the listed models operational with their customers. Has anyone posted how many of the listed models are actively in service today? If less than 192K....that would seem to be in compliance even after the 30 day "grace period"

Please feel free to tell me how stupid I am


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## mark722

Greg Bimson said:


> If there are people that want to run through with blinders on, or cheerlead and say this is no real issue, then I'll be there to state there are issues, and you need to know what they are. Anything less is a disservice to the community.


Really??? You really think you are doing a service to the community with your "information". What community would that be, the "Tivo Community". Your "information" has been consistently pro Tivo and anti Dish. It's pretty obvious where your loyalties lie. I never said this was not an issue and as a matter of fact I own a Tivo box with a lifetime subscription myself. I also have owned a ReplayTV and one of the original Dishplayer 7100 DVRs. If your "information" was based solely on the facts, then I'd have no problem with it. But when you continue to regurgitate the same "speculation" over and over till it makes me want to regurgitate myself, then we have a problem.


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## Greg Bimson

mark722 said:


> Really??? You really think you are doing a service to the community with your "information". What community would that be, the "Tivo Community". Your "information" has been consistently pro Tivo and anti Dish. It's pretty obvious where your loyalties lie. I never said this was not an issue and as a matter of fact I own a Tivo box with a lifetime subscription myself. I also have owned a ReplayTV and one of the original Dishplayer 7100 DVRs. If your "information" was based solely on the facts, then I'd have no problem with it. But when you continue to regurgitate the same "speculation" over and over till it makes me want to regurgitate myself, then we have a problem.


yet you do not have a problem with the pro-DISH/SATS crowd offering up the same arguments over and over again? Give me an H, give me a Y, give me a P...

I've even stated before if there is something I've stated that is wrong, please challenge me on it. There haven't been many errors on my part.


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## Herdfan

mark722 said:


> Which brings up the question: Why are so many Tivo subs posting here?


OK,

I am a DirecTV sub and have been since 1994.
I am a TiVo sub and have been since 2000
I was a DISH sub for a period of time when TNT-HD had NASCAR races and D* didn't have TNT-HD.
I enjoy THIS board more than TCF.
I find Charlie, his ego and decision making interesting.
I find legal issues interesting and probably would have/should have gone to law school, but I read _One L_ and that scared the [email protected]#$ out of me. 
If anything, I should be mad a TiVo for being difficult and not being able to come to an agreement with DirecTV.

So I have no agenda, not spreading FUD, I just find the entire thing interesting. And this board is a good place to discuss it.


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## Herdfan

James Long said:


> Defeated already? The problem for customers isn't DISH settling with Tivo ... it is DISH offering DVRs.


Perhaps _settling_ is the wrong word. But there needs to be some finallity to it for the sake of the customers.

DISH is, and this is not FUD, but fact, going to be in a world of hurt IF their DVR's, or even a portion of them, get shut off. As would ANY provider. It just so happens that DISH is much closer to that happening than any other provider at this point in time.

As a customer, I would hope my provider would realize this and take whatever prudent steps can be taken to end it. But as the distants case shows, the subs should not have too much confidence in what information comes out of Englewood.


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## mark722

Greg Bimson said:


> yet you do not have a problem with the pro-DISH/SATS crowd offering up the same arguments over and over again? Give me an H, give me a Y, give me a P...
> 
> I've even stated before if there is something I've stated that is wrong, please challenge me on it. There haven't been many errors on my part.


I don't have a problem with them because this is a Dish forum and they probably find you as annoying as I do. And wouldn't it be nice if we were all as perfect as you think you are. Conceited much??


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## Greg Bimson

jmpfaff said:


> I'm not a lawyer, but when I read that, I can't help but conclude a contempt hearing isn't the next step for the 622/722 series. "Not colorably different" to me means the same thing in a new paint job with a new model number. If DISH/SATS really rewrote the software....even if the new software infringes....it takes more than a contempt hearing to determine if that new software also infringes.


Welcome to the thread, jmpfaff.

The "not colorably different" relates to the "Infringed Claims", the ones DISH/SATS was found guilty of infringing. So, let's say I took the software, and changed two lines of it, and put it in a new box called the 888. Because the software still infringes upon the exact same claims as the old software, that box would be enjoined, because it contains software not colorably different from the software which infringed.

That is why I've been stating TiVo should ask for a summary judgment regarding the doctrine of equivalents on the hardware claims that were reversed and remanded back to the District Court. A reinstatement of the hardware claims makes the entire case bulletproof. Some will tell you that it is an impossibility, because of the way the reversal is worded, and that the Court of Appeals meant that it should be retried. However, just last week DirecTV won their patent infringement appeal against Finisar, as that Court of Appeals vacated the entire verdict and told the District Court it must retry the case. So the hardware claims in the TiVo case may not have to be retried, as the Court of Appeals did not force the District Court to retry the hardware claims.

Meanwhile, there is this injunction...


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## jacmyoung

Greg Bimson said:


> ...I've even stated before if there is something I've stated that is wrong, please challenge me on it. There haven't been many errors on my part.


You said DISH could not introduce any evidence in a contempt hearing, do you still stand by that?

You made it sound so easy to get a summary judgment and stand up to appeals, is this still your belief?

You said once the case was back in the district court sparks will fly, did it fly?


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## Greg Bimson

mark722 said:


> I don't have a problem with them because this is a Dish forum and they probably find you as annoying as I do.


Ah, so this forum is for cheerleading, not for information. I understand.


mark722 said:


> And wouldn't it be nice if we were all as perfect as you think you are. Conceited much??


No. Hardly.

Look, I am not trying to spread FUD, either. I happen to agree with James Long that DISH/SATS will do what it takes to keep the DVR's running. So the most likely outcome was, and will always be a settlement with TiVo. The problem is that DISH/SATS is starting to dig a hole, and subscribers need to be aware of their actions.

I'll give another scenario. One that I'd hope wouldn't happen. DISH/SATS sent a letter out to their resellers dated 18 April. The letter contained DISH/SATS' interpretation of events, notifying the dealers of the injunction and containing a copy of the injunction. Take a look at this:


> Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined [...] from making using, offering to sell, selling, or importing in the United States, the [DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942].


Are DISH/SATS resellers required to stop selling the listed DVR's? That is what this says. So could TiVo be a real ******* child and not only go after DISH/SATS, but their reseller channel as well?

I just don't think many people are paying attention to exactly what a standing injunction in full force and effect is.


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## Greg Bimson

jacmyoung said:


> You said DISH could not introduce any evidence in a contempt hearing


You want this prediction? Fine. Not on the list of infringing DVR's. They are in stone UNLESS DISH/SATS gets the injunction removed. Which would be less likely than getting a summary judgment request affirmed.


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## jacmyoung

Greg Bimson said:


> You want this prediction? Fine. Not on the list of infringing DVR's. They are in stone.


So you are basically daring DISH to even introduce such evidence in a contempt hearing?


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## jacmyoung

Greg Bimson said:


> You want this prediction? Fine. Not on the list of infringing DVR's. They are in stone UNLESS DISH/SATS gets the injunction removed. Which would be less likely than getting a summary judgment request affirmed.


If you would only care to use basic logic, you would understand that since at this moment, DISH's hardware are non-infringing, and if they can prove their software no longer infringes, then can you honestly say they can not sell their DVR's?

Let's just for argument sake forget about the injunction for a monent, consider only the above scenario, and answer my question, if the above is true, can Tivo legally ask the court to stop DISH from selling the DVR's?

I hope your answer is no. Now enters this injunction, why all the sudden it is ok now? Because the judge said so? Are you sayig a judge can not be proven wrong?


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## Greg Bimson

jacmyoung said:


> Let's just for argument sake forget about the injunction for a monent,


That is the whole problem. You CANNOT forget about the standing injunction.


jacmyoung said:


> If you would only care to use basic logic, you would understand that since at this moment, DISH's hardware are non-infringing, and if they can prove their software no longer infringes, then can you honestly say they can not sell their DVR's?


Truthfully, the basic logic here is correct. TiVo will have an issue with the 622/722. Think about what happens if either party brings up these receivers:

TiVo can probably prove there was software on the 622/722 that infringed upon the patent. However, DISH/SATS can use the current software to try to prove that they are not infringing on the Time Warp patent. So it is more than likely in a software-only infringement claim, the 622/722 would not be subject to the injunction. The new software means the 622 and 722 are probably more than colorably different now.

Aren't the 501, 508, 510, 522 and 625 older models that aren't being sold anyways? I thought most people these days are opting for the 622/722.


jacmyoung said:


> Now enters this injunction, why all the sudden it is ok now? Because the judge said so? Are you sayig a judge can not be proven wrong?


Sure a judge can be proven wrong. But look at what you are now asking for...

Judge Folsom, in his final act prior to appeal, entered a final judgment and injunction, and denied DISH/SATS a stay on that injunction, stating the defendants will not likely win reversals on all claims. The Court of Appeals did not have any problem with that. As a matter of fact, the Court of Appeals did reverse and remand the hardware claims, but upheld and removed the stay of the injunction which was in full force and effect before the case ever was remanded back to District Court. If the injunction was no longer valid the way it was written, the injunction would have been stayed by the Court of Appeals, mandating the District Court to review and rewrite the injunction.

So even if a judge is wrong, where does this injunction go, for relief? To the same court that blessed it! The basic logic here dictates that the injunction is fine, because the courts believe it to be.

The argument in the logic that the injunction is very valid is much more compelling that the argument that the new software trumps the injunction.

So is there any wonder why I say TiVo would love to get the hardware claims reinstated as guilty? If that happens, it is the end, as every DISH/SATS DVR would be infringing on the hardware claims and therefore subject to the "only colorably different" clause in the current injunction.


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## jacmyoung

Look Greg, I am asking you as a fellow member forget about this whole case for a moment, I know you are not willing to but let's say you are big enough to allow me one chance to explain my logic.

Let's say there is no injunction, in fact there was never a trial, the only two things we know are 1) DISH's hadware are not infringing, and 2) DISH can prove to you its new software also does not infringe.

Simply consider the above facts for a moment then answer me this question, can you stop DISH from selling its DVR's?

It is a fair question, as long as we understand it is hypothetical. So in such condition can you honestly say you can stop DISH from selling the DVR's?

I am sure any reasonable person will say no. Because logic tells us so.

Now let's re-introduce the background information, that is there is this injunction. You are saying because of such injunction, you must throw away the logic you just used, and surrender to such injunction? Not that you can not do that, you have every right to do so.

But honestly from a pure objective and logical standpoint, do you really wish this is the kind of justice you seek? That logic, no matter how true it is, must give way to a judge's ruling?

And if this is how our legal system works, I can honestly say I am truely disappointed, not because I like DISH, or I dislike Tivo, rather I fear for my own rights as a free man, that we live in a place where a judge can rule over me agaisnt obvious logic and common sense, is this a place where you wish to live? I sure don't.


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## phrelin

jacmyoung said:


> ...I fear for my own rights as a free man, that we live in a place where a judge can rule over me agaisnt obvious logic and common sense, is this a place where you wish to live? I sure don't.


Don't know about Greg, but when are you moving becauses that happens regularly here in the old USofA? Our legal system is deeply flawed. Of course, so is everyone elses.


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## inkahauts

jacmyoung said:


> Look Greg, I am asking you as a fellow member forget about this whole case for a moment, I know you are not willing to but let's say you are big enough to allow me one chance to explain my logic.
> 
> Let's say there is no injunction, in fact there was never a trial, the only two things we know are 1) DISH's hadware are not infringing, and 2) DISH can prove to you its new software also does not infringe.
> 
> Simply consider the above facts for a moment then answer me this question, can you stop DISH from selling its DVR's?
> 
> It is a fair question, as long as we understand it is hypothetical. So in such condition can you honestly say you can stop DISH from selling the DVR's?
> 
> I am sure any reasonable person will say no. Because logic tells us so.
> 
> Now let's re-introduce the background information, that is there is this injunction. You are saying because of such injunction, you must throw away the logic you just used, and surrender to such injunction? Not that you can not do that, you have every right to do so.
> 
> But honestly from a pure objective and logical standpoint, do you really wish this is the kind of justice you seek? That logic, no matter how true it is, must give way to a judge's ruling?
> 
> And if this is how our legal system works, I can honestly say I am truely disappointed, not because I like DISH, or I dislike Tivo, rather I fear for my own rights as a free man, that we live in a place where a judge can rule over me agaisnt obvious logic and common sense, is this a place where you wish to live? I sure don't.


I have a problem with your logic. NOT your point, but the logic you use to get there. It is flawed. Let me explain it mathematically...

X= Dish DVRS
Y= Software NOT Infringing 
Z= Dish can sell
C= Software IS and/or at one time WAS infringing

X + Y = Z
X + C Does NOT necessarily = Z
because we know for a fact that 
C is not the EXACT same as Y

X, Y, and Z all have a set value... However, C is a variable equation in and of itself (its in litigation and is subject to interpretation and compliance and most importantly penalty issues), and can ultimately end up at a value that may or may not be the same as Y

Your logic does not work because the infringing software is a variable that is not taken into account in any way in your hypothetical question. The software infringing changes the values in your hypothetical question to the point that they are no longer guaranteed to = the same result.

Oh, and here is an example of how when you screw up you are no longer aloud to do something.... felons no longer get to vote once they are released on parole. Yeah, they may be free (like dish is in being able to sell completely different dvr's top to bottom) but they will never get to vote again... like dish might not be able to operate the DVRs that once had infringing software on them even though they are no longer "locked up by infringing software" if you will. Once you break trust, you don't always get it back by fixing the issue that caused the loss of trust. If so, divorce court would be a lot less busy...


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## peak_reception

If I may speak frankly and honestly, even critically (sometimes hazardous on this forum...). Any thread of discussion about important events where the outcome is unknown is going to contain *a lot* of speculation. Sorry, that's life. 
The AMC-14 thread contained *a lot* of speculation. Can the satellite be put into a usable orbit? Can it be salvaged at all? What went wrong with the launch? With the burns? What's the orbit now? What will it take to put it into proper orbit? Can it be done? How will the costs figure? How much life would it still have after that? How will the insurance factor in? Basically a ton of unknown questions were posed *and speculated on*. Was that thread ever re-named the "AMC-14 mostly speculation thread"? No. 
[and incidently, was there any gloating over the loss of that satellite when the decision was finally made to write it off? No.]

The reason this thread is being disparaged now by the DISH Happy Talk Only crowd is because there is criticism and argument here which goes against DISH interests. Is it ok to say "DISH Happy Talk" crowd? It's certainly ok to talk about FUDs (fear, uncertainly, doubt) and disparage dissent. But disparage DISH or DISH boosterism iin some way on here and watch out!

And now accusations of Tivo moles secretly plotting the downfall of DISH and trying to get DISH customers to switch to other providers, and all the rest. Mark722 comes on and says to Greg Bimson: 


> Really??? You really think you are doing a service to the community with your "information". What community would that be, the "Tivo Community". Your "information" has been consistently pro Tivo and anti Dish. It's pretty obvious where your loyalties lie.


 And then someone else suggests that "anti-DISH" posts (anything that's not DISH Happy Talk) sound like stockholders or even owners(!) of Tivo.

Maybe we should all lay our cards on the table. Like on CNBC when analysts come on to discuss companies. Up goes the chart with checkmarks: Owns stock himself? yes or no. Family owns stock? yes or no. Firm owns stock? yes or no. other associations with the company being discussed? yes or no. It might help to sort out who really has conflicts of interest. I've seen posts where a DISH employee will note that fact at the bottom of his post. I respect the hell out of that! Lay out the cards. How many posters who rail against criticism of DISH are actually employees or stockholders in the company? I wonder. This puts me on dangerous ground because I'm then looked on suspiciously by the DISH Happy Talk crowd as some disloyal mole. But it's ok to wonder aloud how many of those posting criticism on this thread are Tivo "moles," stockholders, employees, even owners(!). The double standard is unpleasant at best, bullying at worst. I've never liked bullies.

I am a DISH subscriber stuck under contract for another year. And before some wannabe bully spouts off about how I should just break the contract and get lost now, that's my business. I know my options and it's none of your business. I am not a Tivo subscriber. I am not a Tivo stockholder. I am not a Tivo employee. I am not an owner of Tivo. I've never even seen a Tivo let alone used one. Nope. I have no conflict of interest other than my distaste for arrogance and bullies and -- increasingly -- seeing DISH acting like both on the corporate level. I also believe in criticism and dissent, unlike some on this forum.

I rarely watch Charlie Rose but I happened upon it while channel surfing tonight (last night) and the guest was A.J. Laffley, the Chairman and CEO of Procter and Gamble. There was an interesting exchange where A.J. Lafley described how the company values complaints, *yes complaints!* He said that complaints are an opportunity to improve the way they do things. A way to improve products. A way to improve customer satisfaction. Of course not all complaints are going to have merit, but a lot of them in fact do, he says. Can you imagine that?!

Mark722 again to Greg Bimson:


> If your "information" was based solely on the facts, then I'd have no problem with it. But when you continue to regurgitate the same "speculation" over and over till it makes me want to regurgitate myself, then we have a problem.


 If you don't like what Greg Bimson or anyone else is saying *then don't read it!* Don't even open the thread. The same kind of comments are all over the HD Gripe Discussion/whatever-it's-been-labeled-now-to-diminish-it-even-more thread. First complaints are ghetto-ized into a single thread, and then not even that will satisfy the DISH Happy Talk crowd who apparently don't want complaints about DISH anywhere on the whole forum. Pro-DISH arguments in this thread have been hashed over and repeated every bit as much --or more-- than Anti-DISH arguments. It's just that mark722 likes the Pro-DISH comments and dislikes the Anti-DISH comments. Typical. 
I for one have found the information _*and speculation* _in this thread to be very informative, stimulating, thought-provoking, and educational. I have respect for those posting pro- and anti- DISH/Tivo court case positions here. I don't have respect for those coming in late after offering nothing at all to the topic and flinging mud around trying to discredit and/or attack those of us who don't necessarily tow the DISH line in this matter.


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## James Long

inkahauts said:


> Oh, and here is an example of how when you screw up you are no longer aloud to do something....


Generally irrelevant to this case (since the law does not require a permanent "death penalty" injunction).

DISH is not permanently prohibited from offering DVRs. They are only prohibited from offering infringing DVRs. DISH has announced that due to the software change their current DVRs no longer infringe. Court activity to follow. Speculation will continue regardless.


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## James Long

peak_reception said:


> It's certainly ok to talk about FUDs (fear, uncertainly, doubt) and disparage dissent. But disparage DISH or DISH boosterism iin some way on here and watch out!


Spread FUD all you want, just don't claim it as the one true truth ... BOTH sides of the argument have merit ... the side you seem to support just has a lot more hatred. Practically cheering for the destruction of a company.

Yes, I wonder about vested interests. I have none, other than being a subscriber.


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## peak_reception

James Long said:


> the side you seem to support just has a lot more hatred. Practically cheering for the destruction of a company.


If you're talking about Tivo having a lot of hatred for DISH, I'm not aware of those Tivo forums someone else mentioned. I'll do a web search and see for myself. If you're talking about hostility toward DISH in general, I think it's more specific to Charlie Ergen and the corporate leadership of the company and how he/they do business.


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## dgordo

James Long said:


> the side you seem to support just has a lot more hatred. Practically cheering for the destruction of a company.
> 
> Yes, I wonder about vested interests. I have none, other than being a subscriber.


Can you quote one post that is cheering the destruction of DISH from Greg, Curtis or myself? Mainly from Greg or Curtis since they seem to be taking the majority of the beating.

And since it seems to matter, I am DISH shareholder and a Directv subscriber. I have never owned a Tivo and I never will.


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## jacmyoung

inkahauts said:


> ...Oh, and here is an example of how when you screw up you are no longer aloud to do something.... felons no longer get to vote once they are released on parole.


I have been waiting for someone to throw such logic at me. A vallid point, we are talking punishment that fits the crime.

Let's think about this case carefully, let's not even consider the difference between a civil and a criminal case, because your example was a crimnal case I believe.

But consider just purely from the point of whether the punishment fits the crime.

First let's be very clear, the assumption is DISH can prove its software no longer infringes, and DISH's hardware never infringed. If DISH's software still infringes and the hardware can again be found to be infringing, all bets are off.

But one must admit as of now, DISH' hardware never infringed, and you must also admit the possibility exists that DISH can prove its new software no longer infringes.

It is very important to keep those in mind before I go into to my next step in response to your punishment fits the crime issue.

The judge had said he did not think DISH willfully infringed, as a result he did not even ask DISH to pay Tivo's legal cost, because he thought it would be unfair to impose such damage on DISH for the offense DISH did not commit, that is willful infringement. Let's also keep our eyes on the ball here, that the purpose of an injunction is to prevent future infringement. And again I ask you all to remember the above conditions, that the DISH new software no longer infringes, and its hardware never did infringe, meanning DISH no longer infringes in the future, meaning judge's intent to prevent future infringement would be met.

With me so far?

Now how much is the Tivo's legal fee are we talking about? 100 millon bucks? I don't thnk so but let's say it is.

How much would cost DISH to replace all 4 million DVR's? Two billion bucks is about right?

You mean to tell me the judge had in his heart to exampt DISH from paying 100 million dollars because he did not think DISH deserved that even considering the past offenses, but somehow he will not see the harm his injunction would cause DISH if it were to proceed as is, despite the fact DISH has already satisfied his purpose of no future infringement, that too bad DISH has to pay the equivalent of 2 billion dollars of punishment due to the same past offenses that the same judge has already consider too harsh a punishment for that extra 100 million Tivo legal fees to fit?

What do you all think this judge is? A moron? I have said he made two critical errors in this trial but I did not say he was a moron.

In fact from the legal standpoint the judge actually did exactly what the law asked him to do, to respond to Tivo's complaints in this trial.

It was Tivo who made the mistakes. Tivo should have request a verdict on hareware infringement on the equivalents during the trial, it did not, probably because Tivo was very confident DISH hardwware was guilty of literal infringement, so no need to even consider the equivalents, which is much easier to prove. During the appeal however Tivo had second thought, it asked the court to consider the equivalents if the court was to overturn on literal basis, but the appeals court basically said it was too late because the jury did not make a decision therefore no can't rule on the equivalents, your hardware verdict was overturned.

Now I said the second error was the judge did not take the advice from the appeals court to re-address the hardware verdict after the verdict was overturned, and let the injunction, which in part was based on the hardware verdict (which was overturned), to stand as is. Though I said it was the judge's second error, but technicall it may not be so. Remember when the hardware verdict was overturned, it should be Tivo's duty to request the judge to re-address the issue. But Tivo did not, herefore the judge did not have to either, because it is not the judge's job to tell Tivo what they should do, he decided to let the injunction take its own course, knowing that if in the future DISH can prove the new software no longer infirnges, the goal of the injunction will be met, and therefore DISH will not be in contempt. The judge is not a moron, he must have anticipated such possible outcome. He did not have to inform Tivo the consequences of such outcome. His job is to rule based on the outcome that is yet to come, his job is not to ensure Tivo be smart and win.

And if the outcome turns out to be that the DISH new software no longer infringes, and if Tivo does not ask for a summary judgement on the hardware claim, meaning DISH's hardware never infringed, then the judge will most certainly found the punishment of his injunction no longer fit the offenses, because remember, he has already decided that $100 million Tivo legal fees did not fit DISH's offsenses. So in his mind the $2 billion punishment will certainly not fit the same offenses, that is of course to assume DISH can convince him their new software no longer infringes.

Unless you are just so adamant that it is impossible for DISH to prove their new software does not infringe. If so the only thing I can say is yes you just want wish for Tivo to win it all and DISH to lose it all. And that is ok, but let's be clear that it is a baised wish, not an objective one, and likely just a wishful thinking.


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## Herdfan

James Long said:


> Yes, I wonder about vested interests. I have none, other than being a subscriber.


Well, I wouldn't want to be you or any other mod if DISH DVR's went dark. This place would be a zoo!


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## NYSmoker

Herdfan said:


> Well, I wouldn't want to be you or any other mod if DISH DVR's went dark. This place would be a zoo!


Actually the place would quiet down a lot I imagine as everyone would need to sit in front of their televisions in order to see the show they wanted because time shifting it would be impossible.


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## Curtis0620

The jury found that
Defendants' accused DVRs infringed each of the asserted claims and further found that
*Defendants' infringement was willful*.

From court documents.


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## Curtis52

NYSmoker said:


> Actually the place would quiet down a lot I imagine as everyone would need to sit in front of their televisions in order to see the show they wanted because time shifting it would be impossible.


The injunction requires that the hard drive be shut down. In a lot of DVRs this means no "live TV".


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## jacmyoung

Curtis0620 said:


> The jury found that
> Defendants' accused DVRs infringed each of the asserted claims and further found that
> *Defendants' infringement was willful*.
> 
> From court documents.


You should read further, the judge later over-ruled that particular jury's finding and found DISH not guilty of willful infringement, and therefore did not impose Tivo's legal fees on DISH.

The jury can not come back and say judge you are wrong. Tivo may argue such but apparently Tivo did not. So as far as this trial is concerned DISH did not willfully infringe.

Unless people have a major problem with my logic above, which is perfectly fine, we can discuss that.

But if you agree with my logic above, then you must admit the possibility exists that the judge may lift the injunction at some point, if and only if, he finds that DISH no longer infringes.


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## James Long

Curtis52 said:


> The injunction requires that the hard drive be shut down. In a lot of DVRs this means no "live TV".


Or a quick software patch that says "instead of sending data _to_ the drive send it to where the data _from_ the drive would normally be sent".

In your fantasy world where the hard drive is actually disabled DISH would also have to work around EPG issues ... having a hard drive for the EPG doesn't violate any of Tivo's patents, but a reading a strict as yours ("shut down the hard drive" ... period) would not have that drive available for any purpose.

In the real world the DVRs work fine (by some standards, "better than Tivo") and we have powerful corporations with well paid counsel and engineers working on the issues. We also have a situation where NEITHER party would benefit from the shut down of the hard drives on the DVR.



jacmyoung said:


> You should read further, the judge later over-ruled that particular jury's finding and found DISH not guilty of willful infringement, and therefore did not impose Tivo's legal fees on DISH.


Nor were trebble damages awarded. That is just someone's wishful thinking.


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## Greg Bimson

jacmyoung said:


> Let's say there is no injunction, in fact there was never a trial, the only two things we know are 1) DISH's hadware are not infringing, and 2) DISH can prove to you its new software also does not infringe.
> 
> Simply consider the above facts for a moment then answer me this question, can you stop DISH from selling its DVR's?
> 
> It is a fair question, as long as we understand it is hypothetical. So in such condition can you honestly say you can stop DISH from selling the DVR's?


In the issue of being a rightfully fair question, you are correct 100 percent. I could try an sue for patent infringement, but if nothing currently infringes, what is the use? I'd lose! But...


jacmyoung said:


> Now let's re-introduce the background information, that is there is this injunction. You are saying because of such injunction, you must throw away the logic you just used, and surrender to such injunction? Not that you can not do that, you have every right to do so.
> 
> But honestly from a pure objective and logical standpoint, do you really wish this is the kind of justice you seek? That logic, no matter how true it is, must give way to a judge's ruling?


But the assumptions in your scenario are now incorrect as it relates to this case. Those assumptions need to be addressed, and the most important one is the first point:

1) There was a trial, and DISH/SATS was found guilty of infringement. The remedy for the infringement is a permanent injunction; damages have also been awarded. With DISH/SATS found guilty of infringement, the game changes as a presumption of innocence is no longer in play.
2) There is something in your scenario says "new software does not infringe". No one knows that, yet.
3) If the hardware did not infringe, fine, but in this case the hardware most likely infringes. It has not been proven guilty.

What has been forgotten is the injunction was issued 8 September, 2006, for DISH/SATS willful violations. Therefore, the order was to stop selling and then 30 days later shut down DVR's. And in most of these cases, a settlement occurs before an injunction is in full force and effect, because STANDING INJUNCTIONS ARE NEAR IMPOSSIBLE TO GET AROUND. DISH/SATS knew about the injunction from the get-go.

As I've said before, DISH has practically followed the injunction to the letter as of this moment, except for the fact that they are still selling the 5XX and 625 DVR's that are enjoined from sales. It is DISH/SATS belief that new software trumps the injunction. I hope for their sake they've found case law that supports their stance, because if incorrect, this is a bloodbath in waiting.

But these assumptions are a bit negligent:


jacmyoung said:


> What do you all think this judge is? A moron? I have said he made two critical errors in this trial but I did not say he was a moron.
> 
> [...]
> 
> Tivo should have request a verdict on hareware infringement on the equivalents during the trial, it did not, probably because Tivo was very confident DISH hardwware was guilty of literal infringement, so no need to even consider the equivalents, which is much easier to prove. During the appeal however Tivo had second thought, it asked the court to consider the equivalents if the court was to overturn on literal basis, but the appeals court basically said it was too late because the jury did not make a decision therefore no can't rule on the equivalents, your hardware verdict was overturned.


The Court of Appeals was not brief on a finding of infringement by the doctrine of equivalents by either TiVo or DISH/SATS. That is one reason why the case is being handed back to the District Court. Yes, the judge did make an error in his instruction to the jury about a finding of guilt via the doctrine of equivalents.


jacmyoung said:


> Now I said the second error was the judge did not take the advice from the appeals court to re-address the hardware verdict after the verdict was overturned, and let the injunction, which in part was based on the hardware verdict (which was overturned), to stand as is.


Instead of saying something I don't want to say, I'll try this method. *Where is the proof of this?* This case was just put on the District Court docket two days ago, while the formerly stayed injunction was put into full force and effect six days ago. Judge Folsom had no action in this perceived problem.


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## Curtis52

James Long said:


> Or a quick software patch that says "instead of sending data _to_ the drive send it to where the data _from_ the drive would normally be sent".


Maybe Dish can download a new printed wiring board with alternate direct paths to the output instead of only coming from the hard drive output.



James Long said:


> Nor were trebble damages awarded. That is just someone's wishful thinking.


I was referring to willful, bad faith infringement after violating a clear order to shut down the infringing DVRs. If it is determined they have done that at a contempt hearing it would almost certainly mean treble damages for that period of time.

As far as the treble damages for the entire time period since the jury verdict, that's still a possibility too. Dish wasn't allowed to enter some evidence during the trial from attorneys who had advised them that their patent didn't infringe. That evidence would normally be used to preclude a finding of willful infringement. That would have left a gaping hole for an appeal by Dish if Judge Folsom had awarded treble damages, even though justified by the fact that the jury found willful infringement. Craftily, the judge denied treble damages to avoid tying up the appeal further. Since that time, a separate appeal by Dish on that evidence exclusion has gone against them. Treble damages for the entire post trial time period may yet be imposed.


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## Greg Bimson

jacmyoung said:


> You should read further, the judge later over-ruled that particular jury's finding and found DISH not guilty of willful infringement, and therefore did not impose Tivo's legal fees on DISH.





James Long said:


> Nor were trebble damages awarded. That is just someone's wishful thinking.


I invite both of you to re-read the amended final judgment and permanent injunction. Here, better yet, emphasis mine:


> Pursuant to Rule 58 of the Federal Rules of Civil Procedure and in accordance with the jury verdict delivered April 13, 2006 and with the Court's contemporaneously filed orders, the Court thereby enters judgment for Plaintiff against Defendants *for willful infringement of U.S. Patent No. 6,233,389* ("'389 patent"), claims 1, 5, 21, 23, 32, 36, 52, 31 and 61 ("the Infringed Claims") by Defendants[...]


The judge did not award trebled damages nor court costs, but most certainly the verdict is for willful infringement.


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## jacmyoung

Greg Bimson said:


> ...The judge did not award trebled damages nor court costs, but most certainly the verdict is for willful infringement.


Fine then, did it change the fact that the judge did not find the trebled damages fit the offense? Because if so he would have imposed such damages.

My question still remains, do you think the possibility exists that the judge may lift the injunction? I am not asking you how likely, rather if such possibility exists.


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## Greg Bimson

Sure, there is a possibility. However, in the grand ladder of issues, it is more likely that TiVo could get the hardware reinstated than is is for DISH/SATS to get the injunction lifted.

And again we get back to why a District Court judge should lift a standing injunction in full force and effect that the Court of Appeals blessed, by letting the injunction stand and removing the stay on said injunction?


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## TBoneit

James Long said:


> Defeated already? The problem for customers isn't DISH settling with Tivo ... it is DISH offering DVRs. There is still no sign that DISH will _ever_ stop offering DVRs. A lot of fear, uncertainty and doubt thrown around - but the DVRs are still working. Despite the "threats".
> 
> You hate DISH, don't you? What happened, did a DISH installer run over your puppy?
> 
> The courts will decide a proper penalty ... even if you want to seek a penalty fifty fold. DISH has rights here too.


There does seem to be a fair amount of antipathy against Dishnetwork.

It may not be Just Tivo boosters it may also be DirecTV boosters.

I'm not going to worry about it right now. Life is to short to spend it worrying about Something that may or may not happen.

I have a Tivo SA 40 hour. Many of the things Tivo lovers I hated about it. However at that time the choice was Tivo or Replay.

I also still have and use a Dishplayer and a 721 and a 622. I've been thinking about adding a 612 and moving the 721. Has this mess of a thread caused to rethink? Nope.

I now return you to your regularly scheduled "Yes they do" "No they don't" postings.


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## jacmyoung

Greg Bimson said:


> Sure, there is a possibility. However, in the grand ladder of issues, it is more likely that TiVo could get the hardware reinstated than is is for DISH/SATS to get the injunction lifted.


Fine you can certainly believe that, but keep in mind this is an opinion not fact. The fact is a summary judgments is very difficult to stand up to appeal, because to have it to stand, one must prove without even the slightest doubt that the jury would have produced the same verdict. The problem is the appeals court had already offered such opinion what they thought about it, and it said they could not uphold such verdict even if substantial evidence existed to support such verdict, because the jury did not produce such verdict.

So we will find out. My bet is more likely Tivo will not even ask for a summary judgment.



> And again we get back to why a District Court judge should lift a standing injunction in full force and effect that the Court of Appeals blessed, by letting the injunction stand and removing the stay on said injunction?


I have stated such reason, that is if DISH can convince the judge they no longer infringe and will not infringe in the future. If so there is the reason to lift the injunction. I know you don't believe DISH can, or judge will ever believe DISH whatever evidence DISH may produce. But if you simply remove such bias, and assume that if the judge can be convinced, than he can lift the injunction. Or if the judge refuses, on appeal if DISH can convince the appeals court, the appeals court has the power to over-turn such injunction.

Not that they will, only that they can and the possibility is there. And according to DISH they are confident they can convince the court. I know you don't give DISH and its legal team one ounce of credibility, so we shall find out.


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## Curtis52

I vote for less discussion about "feelings" and more discussion about logic.


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## James Long

Curtis52 said:


> James Long said:
> 
> 
> 
> Or a quick software patch that says "instead of sending data _to_ the drive send it to where the data _from_ the drive would normally be sent".
> 
> 
> 
> Maybe Dish can download a new printed wiring board with alternate direct paths to the output instead of only coming from the hard drive output.
Click to expand...

A DVR isn't an analog tape with two heads and a spool to buffer content between a write head and a read head with the only path for input data to be written by one head and read by another. 



Greg Bimson said:


> James Long said:
> 
> 
> 
> Nor were trebble damages awarded. That is just someone's wishful thinking.
> 
> 
> 
> I invite both of you to re-read the amended final judgment and permanent injunction.
Click to expand...

I invite you to read what you quoted ... I didn't say it wasn't willful ... I said that trebble damages were not awarded.


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## James Long

Curtis52 said:


> I vote for less discussion about "feelings" and more discussion about logic.


I vote for less discussion about logic and more discussion about fact.


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## Curtis0620

James Long said:


> I vote for less discussion about logic and more discussion about fact.


Me too. The fact is from the injunction:

Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined [...] from making using, offering to sell, selling, or importing in the United States, the [DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942].

So when will they shut them off?


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## James Long

A question requiring speculation! 

Answer (from DISH's statements): They won't.


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## Curtis52

James Long said:


> A DVR isn't an analog tape with two heads and a spool to buffer content between a write head and a read head with the only path for input data to be written by one head and read by another.


subscriber: I don't have a picture.
CSR: I'm sorry sir. Maybe it's your hard drive. If so, you should still be able to see menus. First make sure the DVR is plugged in and then select "direct path for live TV" from the system menu. See if there is a picture.
subscriber: that worked. Thanks.
CSR: It sounds like you have a bad hard drive. We'll send someone out but it will take a couple of days. At least you will be able to watch TV.

I've never heard of anything like this.

I'm sorry I'm not posting "facts".


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## jacmyoung

James Long said:


> I vote for less discussion about logic and more discussion about fact.


I agree, I will end my logical debate and wait for more facts to come out


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## Moocher

peak_reception said:


> If I may speak frankly and honestly, even critically (sometimes hazardous on this forum...). Any thread of discussion about important events where the outcome is unknown is going to contain *a lot* of speculation. Sorry, that's life." <snip> .


As someone reading this thread just because the issue is interesting I have not appreciated the personal attacks. I do like the discussion of the issues, but not the biased-against-another-poster arguments.

Mooch


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## jacmyoung

Curtis52 said:


> subscriber: I don't have a picture.
> CSR: I'm sorry sir. Maybe it's your hard drive. If so, you should still be able to see menus. First make sure the DVR is plugged in and then select "direct path for live TV" from the system menu. See if there is a picture.
> subscriber: that worked. Thanks.
> CSR: It sounds like you have a bad hard drive. We'll send someone out but it will take a couple of days. At least you will be able to watch TV.
> 
> I've never heard of anything like this.


Since the DVR's will not be disabled, such conversation will not occur.

But if you are talking about how a new software may be written to choose a different path to achieve a similar end goal, I can tell you with my own limited experience it can be done. In fact during one of the programming courses I took, the final was for each student to write the same computer game. The end result was each used different instructions, some even used different programming language, to achieve the same result of playing that game, and we demonstrated our products in front of the instructor, on different PC's, those PC's had different chips in there and different design and power and age, some expensive, others primitive, and most all games worked well and worked similarly well.


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## gully_foyle

TBoneit said:


> There does seem to be a fair amount of antipathy against Dishnetwork.
> 
> It may not be Just Tivo boosters it may also be DirecTV boosters.


It might also be folks who believe that if you willfully and clearly infringe a valid patent it should cost you a LOT. Is there anyone here who doubts that TiVo invented the DVR? (And no, that you would have done so yourself because it was "obvious" doesn't count for anything. You didn't.) Or do DISH's defenders believe that patents shouldn't exist? Or is it that DISH can do no wrong?

Personally, I subscribe to DirecTV, and have since before there was a DISH. But I wish them no ill will, as the competition keeps my fees lower. I don't play the fanboy thing. I preferred my HR10-TiVo to my HR20-DVR, but that ship sailed a while back.

Note that DirecTV paid TiVo money for licensing their patents. Why should DISH get a free ride on other people's ideas? Ideas that the US Government, after VERY careful review, has found patentable.


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## Curtis52

jacmyoung said:


> But if you are talking about how a new software may be written to choose a different path to achieve a similar end goal, I can tell you with my own limited experience it can be done if the hardware is designed that way.


Of course it can be done if the hardware is designed that way. The question is whether the hardware design allows it. It's more expensive that way and if they did it they certainly have never taken advantage in the past. Otherwise the CSR scenario I described would be happening every day.


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## Greg Bimson

jacmyoung said:


> The fact is a summary judgments is very difficult to stand up to appeal, because to have it to stand, one must prove without even the slightest doubt that the jury would have produced the same verdict.


Incorrect. A summary judgment does not have to provide that a jury would have produced the same verdict. A summary judgment is when the judge decides what the verdict should be. This District Court judge has the latitude to decide guilt or innocence. The reason the case it back to him is because the Court of Appeals could not rule on infringement via the doctrine of equivalents due to:
1) a stricter interpretation of the hardware claims;
2) that the jury did not make a decision based on the doctrine of equivalents, and;
3) that neither TiVo nor DISH/SATS briefed the Court of Appeals on the possibility of using the doctrine of equivalents.

All of that can be handled by a summary judgment, or if that doesn't work, a quick bench trial. After all, the facts in the case are the facts, and are still in the record. They just need to be evaluated and judged against a new standard.

And that is still more likely than invalidating or rewriting a standing injunction.


----------



## jacmyoung

Curtis52 said:


> Of course it can be done. The question is whether the hardware design allows it. It's more expensive that way and if they did it they certainly have never taken advantage in the past. Otherwise the CSR scenario I described would be happening every day.


The problem is you like to assume it can not be done, because it was not done before. That is your assumption, an assumption on a good basis I understand, but still an assumption.

My speculation is simply the reason DISH did not try was because they were lazy and they did not think they could be caught. Once they realized the kind of trouble they were in they started to do it. I am not saying they did it, only to give you a speculation why they had not done it before and why they said they did it now.


----------



## Curtis52

jacmyoung said:


> The fact is a summary judgments is very difficult to stand up to appeal, because to have it to stand, one must prove without even the slightest doubt that the jury would have produced the same verdict.


Hmmm...

"Not more than colorably different" sounds a lot like "equivalent" to me. Maybe a judge can rule on the doctrine of equivalents after all.


----------



## James Long

Curtis52 said:


> subscriber: I don't have a picture.
> CSR: I'm sorry sir. Maybe it's your hard drive. If so, you should still be able to see menus. First make sure the DVR is plugged in and then select "direct path for live TV" from the system menu. See if there is a picture.
> subscriber: that worked. Thanks.
> CSR: It sounds like you have a bad hard drive. We'll send someone out but it will take a couple of days. At least you will be able to watch TV.
> 
> I've never heard of anything like this.


Neither have I ... but don't forget the premise of a code change that WOULD allow live TV, unbuffered to the hard drive. Just because current code may not allow it does not mean it is permanently impossible.

You appear to have the same hangup on "Tivo free" DVR operation ... as if the infringing code can never be removed an no DVR can ever be designed without infringing. Rely on the experts ... the companies that are betting their futures on what they are saying. They say it can (and has) been done.


----------



## Curtis52

jacmyoung said:


> My speculation is simply the reason DISH did not try was because they were lazy and they did not think they could be caught. Once they realized the kind of trouble they were in they started to do it. I am not saying they did it, only to give you a speculation why they had not done it before and why *they said they did it now.*


Huh? Where did they say that?


----------



## jacmyoung

Greg Bimson said:


> Incorrect. A summary judgment does not have to provide that a jury would have produced the same verdict. A summary judgment is when the judge decides what the verdict should be. ...


Quote from Wikipedia:



> Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for one party to prevail if the matter were to proceed to trial. The court must consider all materials in the light most favorable to the party opposing the motion for summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, (1970), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
> 
> *If a trial could result in the jury (or judge in a bench trial) deciding in favor of the party opposing the motion, then summary judgment is inappropriate. *A decision granting summary judgment can be appealed without delay. A decision denying summary judgment ordinarily cannot be immediately appealed; instead, the case continues on its normal course. In United States federal courts, a denial of summary judgment cannot be appealed until final resolution of the whole case, because of the requirements of 28 U.S.C. § 1291 and 28 U.S.C. § 1292 (the final judgment rule).
> 
> *In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence.*


In regard to the first highlight, it is basically saying the jury must assumed to produce the same verdict for the summary judgment to be appropriate. In this case, the appeals court has said they could not have predicted that the jury would have produced an verdict no other than guilty on infringement on equivalents, that is the death sentence for that justification for such summary judgment.

In the second highlight, DISH only needs to produce some fact, any facts, and such facts do not even have to be very good, in order to defeat the motion for such summary judgment. And that fact will be the above, that the appeals court has already said they could not predict the jury would not have produced a verdict other than guilt of infringement on equivalents. This appeals court's opinion is a very stronge evidence that if the motion is approved by the judge, it will be overturned on appeal.

Which is why my prediction, Tivo likely will not ask for such summary judgment.


----------



## Curtis52

jacmyoung said:


> the appeals court has said they could not have predicted that the jury would have produced an verdict no other than guilty on infringement on equivalents, that is the death sentence for that justification for such summary judgment.


Finish it. They said they couldn't do it because they weren't briefed on it.


----------



## Greg Bimson

> In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence.





> In the second highlight, DISH only needs to produce some fact, any facts, and such facts do not even have to be very good, in order to defeat the motion for such summary judgment. And that fact will be the above, that the appeals court has already said they could not predict the jury would not have produced a verdict other than guilt of infringement on equivalents.


What? This argument is completely circular.

I'll relate the post from wiki to this case:

In order to defeat a motion for summary judgment, DISH/SATS only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence.

There is no longer a dispute of material facts. They are already on record. The fact that the Court of Appeals remanded the case back to the District Court is not evidence:


> At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.


If the issue is addressed, the court can consider it. If the Court of Appeals thought their more restrictive interpretation of the hardware claims demands a retrial, *the Court of Appeals would have vacated the ruling and demanded a retrial*. Because that is exactly what just happened in Finisar v. DirecTV.


----------



## Curtis52

Found elsewhere:

"The U.S. Appeals Court ruled that the Dish Network's Broadcom-based DVRs did not literally infringe on the patent, due to what others have called a "technicality." TiVo's patent says that audio and video streams are split -- but doesn't say specify where -- and the U.S. Appeals Court took that to mean on the hard drive, whereas the Broadcom CPU splits the stream in its built-in cache. TiVo argued unsuccessfully to the Appeals Court that that they meant a logical split, either on the hard drive or in the CPU. The Appeals Court didn't agree with that interpretation under what it admitted was a strict literal reading."


----------



## NYSmoker

kcmurphy88 said:


> It might also be folks who believe that if you willfully and clearly infringe a valid patent it should cost you a LOT. Is there anyone here who doubts that TiVo invented the DVR? (And no, that you would have done so yourself because it was "obvious" doesn't count for anything. You didn't.) Or do DISH's defenders believe that patents shouldn't exist? Or is it that DISH can do no wrong?
> 
> Personally, I subscribe to DirecTV, and have since before there was a DISH. But I wish them no ill will, as the competition keeps my fees lower. I don't play the fanboy thing. I preferred my HR10-TiVo to my HR20-DVR, but that ship sailed a while back.
> 
> Note that DirecTV paid TiVo money for licensing their patents. Why should DISH get a free ride on other people's ideas? Ideas that the US Government, after VERY careful review, has found patentable.


A case sure could be made for Replay TV "inventing" the DVR. They had the patents first I believe. TiVo made it to the market quicker, and by only a few weeks at that. That is why D* purchased Replay.


----------



## Curtis52

NYSmoker said:


> A case sure could be made for Replay TV "inventing" the DVR. They had the patents first I believe. TiVo made it to the market quicker, and by only a few weeks at that. That is why D* purchased Replay.


Do you know why the patent office validated TiVo's patent after a year long reexamination if there was already a patent?

"TiVo Wins Patent Validation

By MAY WONG
The Associated Press
Thursday, November 29, 2007; 5:38 PM

SAN JOSE, Calif. -- TiVo Inc. on Thursday proclaimed itself winner of the latest round in its battle against EchoStar Communications Corp. after federal regulators validated the digital video recorder maker's patent that is central to the case.

EchoStar was disappointed in the U.S. Patent and Trademark Office decision but said the agency's conclusion won't affect its pending appeal of a court ruling in TiVo's favor. The court decision requires it to pay TiVo $89.6 million in damages for patent infringement and to stop distributing DVRs "


----------



## James Long

Replay had "A" patent, but not the patent. Tivo patented a different way of doing it.
Now Echostar have filed their own patent that is different from Tivo's.


----------



## jacmyoung

Curtis52 said:


> Found elsewhere:
> 
> "The U.S. Appeals Court ruled that the Dish Network's Broadcom-based DVRs did not literally infringe on the patent, due to what others have called a "technicality." TiVo's patent says that audio and video streams are split -- but doesn't say specify where -- and the U.S. Appeals Court took that to mean on the hard drive, whereas the Broadcom CPU splits the stream in its built-in cache. TiVo argued unsuccessfully to the Appeals Court that that they meant a logical split, either on the hard drive or in the CPU. The Appeals Court didn't agree with that interpretation under what it admitted was a strict literal reading."


Good point, and I agree with you and Greg about my circular argument on appeals court opinion, my bad.

The fact DISH may produce to defeat the motion for such summary judgment may be that their new software no longer splits the A/V streams, and I think I actually read that part in the patent application, just did not pay much attention to it. Now this fact can be enough to defeat the motion for summary judgment, remember DISH only needs to provide facts in order to defeat, those facts do not have to be very good. It must be left for the jury to decide how good that fact is, or whether such fact is meaningless, but the jury must make that decision. Of course DISH can produce many other facts they might not have thought of before, it should not be too hard a thing to do.

Now one can argue this fact is produced after the fact of the trial, so it may not count, but one can not deny that if a jury trial were to be held again, such fact may influence jury's decision. And that is enough, because we are talking future infringement here, as far as the injunction is concerned.

All past infringements had been assessed damages and what have you, based on both the software and hardware verdicts, bringing back the hardware verdict or not will not change that. Only the future infringement is at issue here. If a new fact exists that may influence the jury on the hardware verdict, not for past, but for future infringement, which will then impact the injunction at hand, then that fact must be considered as far as the details of the injunction is concerned. And that is to assume DISH will not be able to produce any other facts both sides had not thought of in the past. I don't know, how difficult is to come up with an obscure fact? Give me $10,000 and I will try to go through all the patents and software and hardware codes to come up with a few dozen new but not-so-good facts that are related to this hardware claim. The purpose, and the only purpose of course is to defeat the motion for such summary judgment, so Tivo must seek a new trial if it wants to pursue the hardware claim.

And I hope we can all agree only the injunction is at issue among us, no one is disputing whether DISH must pay the damages, even DISH is not disputing that.


----------



## Curtis52

jacmyoung said:


> The fact DISH may produce to defeat the motion for such summary judgment may be that their new software no longer split the A/V streams,


Remember now, this is all about whether Dish infringed the hardware claims.


----------



## jacmyoung

Curtis52 said:


> Remember now, this is all about whether Dish infringed the hardware claims.


Yet where the A/V streams were split was precisely how the hardwware verdict was produced and then overturned. If they do not split, then the issue of infrigement no longer exists one would assume. But that is not even an issue right now, my point is to defeat Tivo's motion for summary judgment, DISH only needs to point out such facts exist. Tivo can seek a new trial, and during that trial they can then spend the next five years to duke it out what the heck those facts mean.


----------



## Curtis52

jacmyoung said:


> Yet where the A/V streams were split was precisely how the hardwware verdict was produced and then overturned. If they do not split, then the issue of infrigement no longer exists one would assume.


What they may or may not do now is not important. The testimony in the trial shows that they did split them. The judge has all the information he needs.

I hope they aren't sending video to the speakers and audio to the screen.


----------



## Greg Bimson

jacmyoung said:


> Yet where the A/V streams were split was precisely how the hardwware verdict was produced and then overturned. If they do not split, then the issue of infrigement no longer exists one would assume.


No, they do split. That is why the doctrine of equivalents was mentioned. Which does mean the issue of infringement exists.

Without reposting the opinion, the Court of Appeals gave TiVo a roadmap. The Court of Appeals could have ruled on the infringement by the doctrine of equivalents if the parties briefed the court. What is more than likely going to be done, now that the case is back at the District Court? Briefings to the court.

None of the facts are in dispute now. With the construction on the claims narrowed by the Court of Appeals, and with the testimony given during the trial that the A/V streams are split, there is enough evidence to support a verdict. A decision can be handed down, either through a summary judgment or a simple ruling from the bench on the given testimony. This paragraph is in my opinion, of course.


----------



## jacmyoung

The bottomline is to resolve a summary judgment will take time, and DISH has all the appeals rights.

I wonder what difference it will make anyway. Because it all hinges on the new software claim now. The new software patent claim does specify A/V combined, not split, among other things. IMO it will not be difficult to convince the judge due to the new software design, both software and hardware are more than colorably different. A new hearing or new trial can then be ordered to determine the infringement issues. If DISH can prove the software and hardware no longer infringe, we are back to square one, what does that mean?

One camp says DISH needs to shut off the DVR's anyway, the other says no as long as future infringement does not occur, DISH is fine.

I guess the question is how likely is judge to lift the injunction order, even if he is convinced the new software (and therefore the hardware) no longer infringes. I found it interesting that the hardware claim was actually based on how the software utilized the hardware, not the hardware itself. That makes it easier to get around the hardware claim. Like I said simply write a new code to not even use that particular chip would be enough to get around the hardware claim.

The way I read the new software patent application, it lays out a road map for why the new software no longer infringes. It combines A/V, it does not use an index file to off load time markers, and it uses some kind of statistical guessing to respond to the DVR commands. To me it stands shoulder to shoulder to the Tivo "Time Warp" patent or the ReplayTV patent for that matter, they are different approaches to reach similar goals.


----------



## BNUMM

The problem for Dish is that the "Doctrine of Equivalents" makes it easier to prove that the hardware infringes. It also could reduce the number of appeals because the Supreme Court has already ruled on the "Doctrine of Equivalents".


----------



## mark722

peak_reception said:


> If you're talking about Tivo having a lot of hatred for DISH, I'm not aware of those Tivo forums someone else mentioned. I'll do a web search and see for myself. If you're talking about hostility toward DISH in general, I think it's more specific to Charlie Ergen and the corporate leadership of the company and how he/they do business.


Here is a link to the Tivo Community Forum:
http://www.tivocommunity.com/tivo-vb/forumdisplay.php?f=3

Here is a link to the Continuing Coverage of the Echostar Trial:
http://www.tivocommunity.com/tivo-vb/showthread.php?t=353290

All of you Greg Bimson and Curtis fans can read up on their posts there, then decide for yourself if they have more than a personal interest in the outcome of this trial. I wouldn't be suprised if they were on the Tivo payroll. I don't consider myself a cheerleader for either side since I have a personal interest in both. But you'd think someone with an impartial view would have something positive to say about the other side. Although I do consider some of their comments interesting, most of their comments are speculation that paint a bright and sunny future for Tivo and a gloomy one for Dish. They say they are not trying to spread FUD on this forum, but that is exactly what they are doing.


----------



## scooper

Thank you. I had suspected as much from the Curtis names, and it sure seemed like Greg was arguing the Tivo side a bit heavily...


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## HobbyTalk

Interesting. That would make any of their speculation suspect.


----------



## jacmyoung

mark722 said:


> ... I wouldn't be suprised if they were on the Tivo payroll. ...


I doubt so. Any company should know better not to rely on such forum exchanges to gain advantages, much less paying for someone who is clearly one sided, which tends to undermine their credibility more than raising it. It is more than likely a devoted fan group situation.

I am more on the side of DBS simply because I have been switching between E* and D* for a long time, but I have been considering buying a standalone Tivo box for as long as Tivo boxes existed, the price tag and monthly fee always ended up stopping me from reaching into my pocket.


----------



## Greg Bimson

Ooooh. I've been caught. 

I am a DirecTV subscriber. I personally don't care whether TiVo wins or loses. I personally don't care whether DISH/SATS win or lose.

But I certainly don't want to come here one day to explain why DVR's are shut off. For an informational board, that would be lacking information.


----------



## Greg Bimson

Oh, yes, but then let me mention there are an amount of people on this thread that are DISH/SATS resellers, or that do have an interest on the DISH/SATS side...


----------



## Tom Robertson

Please, let us not talk about each other or whatever motives there might be by named individuals. Sure, TiVo has their point of view as does Dish, but to talk about members here does not help nor add information. We're all quite able to reach our own conclusions about posters.

:backtotop and not each other.

Thanks,
Tom


----------



## Greg Bimson

mark722 said:


> Although I do consider some of their comments interesting, most of their comments are speculation that paint a bright and sunny future for Tivo and a gloomy one for Dish. They say they are not trying to spread FUD on this forum, but that is exactly what they are doing.


The reverse is true as well.

If you were a DISH/SATS reseller, and received this piece of information, what would you do?


> It is further ordered
> 
> Each Defendant, its officers, *agents*, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby *restrained and enjoined* [...] from making, using, offering to sell, selling, or importing in the United States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as part as another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.


This section of the injunction tells you as a Dish Network reseller not to sell specific listed recievers.

Now you tell me what FUD I am spreading.


----------



## Richard King

mark722 said:


> Here is a link to the Tivo Community Forum:
> http://www.tivocommunity.com/tivo-vb/forumdisplay.php?f=3
> 
> Here is a link to the Continuing Coverage of the Echostar Trial:
> http://www.tivocommunity.com/tivo-vb/showthread.php?t=353290
> 
> All of you Greg Bimson and Curtis fans can read up on their posts there, then decide for yourself if they have more than a personal interest in the outcome of this trial. I wouldn't be suprised if they were on the Tivo payroll. I don't consider myself a cheerleader for either side since I have a personal interest in both. But you'd think someone with an impartial view would have something positive to say about the other side. Although I do consider some of their comments interesting, most of their comments are speculation that paint a bright and sunny future for Tivo and a gloomy one for Dish. They say they are not trying to spread FUD on this forum, but that is exactly what they are doing.


Come on now. Both sides in this "debate" are consistant in their points. Just because one person is taking the Dish side and another is taking the Tivo side doesn't mean that they work for the companies. Let's keep it on topic and not make it personal.


----------



## James Long

Greg Bimson said:


> But I certainly don't want to come here one day to explain why DVR's are shut off.


Then don't. It isn't your responsibility. If DISH's DVRs are turned off _no one_ is going to say "why didn't Greg warn me!".

Part of keeping these threads from becoming personal is not taking the issue personally.



> For an informational board, that would be lacking information.


Is that an attack on our forum? There is PLENTY of information on our forum about this issue and (fortunately) MANY other issues facing DISH Network customers. The challenge posted earlier in this thread remains true ... how much of what is being posted is information and how much is fear mongering?

"Information" seems to be laking ... it is nearly all speculation. Pretending otherwise is misinformation.

Please, don't take it personally ... but it IS the goal of this forum to inform. Which is why this now ~60 post a day ramble keeps getting split away from the truly informative posts. The forum IS informational ... this thread, not so much.

BTW: I join with me fellow moderators in reminding folks that witch hunts are inappropriate. _Requiring_ Curtis or Greg or anyone else give "full disclosure" and hunting them down is inappropriate. There is no such disclosure requirement on our forum. Take people at face value, and discuss the issues - not the people.


----------



## James Long

Greg Bimson said:


> If you were a DISH/SATS reseller, and received this piece of information, what would you do?
> 
> 
> 
> It is further ordered
> 
> Each Defendant, its officers, *agents*, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby *restrained and enjoined* [...] from making, using, offering to sell, selling, or importing in the United States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as part as another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.
Click to expand...

If I were a DISH reseller I would rely on the advice of the company that is at the center of this issue. If I could not trust their advice I would stop reselling their service and sell something else.

I wouldn't put a lot of stock in internet doomsday announcements from outsiders.

If I were a retailer.


----------



## dave1234

kcmurphy88 said:


> It might also be folks who believe that if you willfully and clearly infringe a valid patent it should cost you a LOT. Is there anyone here who doubts that TiVo invented the DVR? (And no, that you would have done so yourself because it was "obvious" doesn't count for anything. You didn't.)
> 
> .


Since TIVO did NOT INVENT the DVR I would say most people here doubt that. Even the TIVO supporters. There were numerous DVR's in exsistence years before TIVO was even formed as a company.

My speculation is: Dish will not turn off current DVR's (622's, 722's etc.). They no longer sell the DVR's named in the injunction. I have no idea how the court will rule in the next round of hearings.


----------



## Curtis52

James Long said:


> If I were a DISH reseller I would rely on the advice of the company that is at the center of this issue. If I could not trust their advice I would stop reselling their service and sell something else.


It almost seems like Dish is verbally telling their dealers something different from what is in the notice they sent out. According to the podcast I linked to earlier, DVRs on the infringing list can no longer be activated. That seems to go along with the injunction's immediate requirement that they can no longer be sold. The Dish notice does say that they believe no further action is required at this time. Well, the 30 days isn't up yet.


----------



## James Long

Curtis52 said:


> It almost seems like Dish is verbally telling their dealers something different from what is in the notice they sent out. According to the podcast I linked to earlier, DVRs on the infringing list can no longer be activated. That seems to go along with the injunction's immediate requirement that they can no longer be sold. The Dish notice does say that they believe no further action is required at this time. Well, the 30 days isn't up yet.


According to the DISH releases posted by Greg in this thread there _are_ a couple of DVR models DISH will no longer be activating.

The podcast you linked is in no way an official communication of DISH Network ... nor do it's producers ever claim that. They are just people, like us, discussing what they know based on the information at hand and speculation.

What 30 days isn't up? The 30 days that started in 2006 and ended this past Monday? Or is this some attempt at covering for the fact that despite the injunction being in FULL FORCE for several days that DISH DVRs still operate? When it is evident that DISH is not disabling DVRs you pick a different date?

DISH has made their statements both public and to retailers about the issue. Seems pretty clear to me.


----------



## Curtis52

James Long said:


> According to the DISH releases posted by Greg in this thread there _are_ What 30 days isn't up? The 30 days that started in 2006 and ended this past Monday? Or is this some attempt at covering for the fact that despite the injunction being in FULL FORCE for several days that DISH DVRs still operate? When it is evident that DISH is not disabling DVRs you pick a different date?


The injunction was only in effect for a few hours before it was stayed in 2006. There is a school of thought that says that the stay stopped the countdown NASA style and it resumed last Friday where the count left off.


----------



## jacmyoung

Greg Bimson said:


> The reverse is true as well.
> 
> If you were a DISH/SATS reseller, and received this piece of information, what would you do?This section of the injunction tells you as a Dish Network reseller not to sell specific listed recievers.
> 
> Now you tell me what FUD I am spreading.


I have not heard any reseller complained about it, probably because well those are discontinued items to begin with, and has been so for some time now. Now I had fun debating you but I can't believe you have this belief that you are here to save everyone from falling off the cliff on the day all DISH DVR's are turned off, are you serious?

And BTW can I ask you two questions, because I am not trying to be argumentative, just really want to know.

1) Since both you and Curtis are certain that all facts had been presented without dispute to produce a summary judgment on the infringement on equivalents, what exactly did the appeals court saw that prevented them from issuing such ruling when Tivo asked them to? I assume they saw the same undisputed facts you saw.

2) Again if you are so certain such summary judgment will be solid, why you yourself only give Tivo 50/50 chance to seek such judgment? Do you think Tivo are concerned of something you don't? If so what that might be?

Again I am not trying to argue with you, just want to know why.


----------



## gully_foyle

dave1234 said:


> Since TIVO did NOT INVENT the DVR I would say most people here doubt that. Even the TIVO supporters. There were numerous DVR's in exsistence years before TIVO was even formed as a company.
> 
> My speculation is: Dish will not turn off current DVR's (622's, 722's etc.). They no longer sell the DVR's named in the injunction. I have no idea how the court will rule in the next round of hearings.


They invented the form of DVR in use today. Yes, there was Replay which used other mechanisms. What is at question is the form of DVR that allows watching and recording simultaneously through the means TiVo claimed. One could always say the VCR was first, or that there were folks who recorded captured stuff on computers, or that Replay was just too stupid to patent what they had, but according to the USPTO TiVo invented the methods that nearly all DVRs use today (with the possible exception of DISH's new methods).

One is always able to use those older methods (VCR, single-stream capture, etc), or invent new ones. But the things that we call a DVR today have at their heart the things TiVo patented.

In any case it was NOT DISH that invented it.


----------



## Curtis52

jacmyoung said:


> 1) Since both you and Curtis are certain that all facts had been presented without dispute to produce a summary judgment on the infringement on equivalents, what exactly did the appeals court saw that prevented them from issuing such ruling when Tivo asked them to? I assume they saw the same undisputed facts you saw.


TiVo asked them to provide a summary judgment on the equivalents for the hardware claims? I don't think so. If they had, they would have provided a brief supporting that request. In fact, that's what the appeals court gave as a reason for not ruling on it. They hadn't been briefed.


----------



## James Long

Curtis52 said:


> The injunction was only in effect for a few hours before it was stayed in 2006. There is a school of thought that says that the stay stopped the countdown NASA style and it resumed last Friday where the count left off.


Perhaps a school of thought ... but not something that DISH nor the courts have acknowledged.


----------



## Curtis52

James Long said:


> Perhaps a school of thought ... but not something that DISH nor the courts have acknowledged.


Yep. Neither one has said anything one way or the other. "In full force" could mean that everything in the injunction is in full force including the startup of the 30 day clock.


----------



## James Long

Curtis52 said:


> Yep. Neither one has said anything one way or the other. "In full force" could mean that everything in the injunction is in full force including the startup of the 30 day clock.


Then why are you saying "_Well, the 30 days isn't up yet._"? Just feel like making more random statements?

TRUST what is put out there by the courts and by the parties. They are the ones with the knowledge.


----------



## Curtis52

James Long said:


> Then why are you saying "_Well, the 30 days isn't up yet._"? Just feel like making more random statements?


I guess I'm not making myself clear. If the injunction wasn't in full force the clock wouldn't have been started yet. The instant it was in full force the clock started. At least that's one theory. It could be like you speculated and the 30 days was up in 2006 even though the injunction was stayed.


----------



## James Long

And yet you continue to ignore the clear statements of DISH Network on the matter.


----------



## Curtis52

James Long said:


> And yet you continue to ignore the clear statements of DISH Network on the matter.


Such as?


----------



## peak_reception

TBoneit said:


> There does seem to be a fair amount of antipathy against Dishnetwork.
> 
> It may not be Just Tivo boosters it may also be DirecTV boosters.


DirecTV subscribers (only) who want DISH to go out of business are foolish. Sure D* would gain a load of new subscribers [good for stockholders]. But then, without DISH competition, the price of being a D* subscriber would probably rise at a much faster rate. Good for D* stockholders; bad for D* subscribers.


----------



## Greg Bimson

jacmyoung said:


> 1) Since both you and Curtis are certain that all facts had been presented without dispute to produce a summary judgment on the infringement on equivalents, what exactly did the appeals court saw that prevented them from issuing such ruling when Tivo asked them to? I assume they saw the same undisputed facts you saw.
> 
> 2) Again if you are so certain such summary judgment will be solid, why you yourself only give Tivo 50/50 chance to seek such judgment? Do you think Tivo are concerned of something you don't? If so what that might be?
> 
> Again I am not trying to argue with you, just want to know why.


No briefs have been filed at this time. That is the request of the court now. TiVo's briefs are due 16 May, and DISH/TIVO's are due 23 May.

The reason I give a 50/50 chance is because TiVo may have a different plan of attack that what I see. I am no lawyer, and TiVo has some hotshot lawyers, so they can figure it out.


jacmyoung said:


> what exactly did the appeals court saw that prevented them from issuing such ruling when Tivo asked them to?


TiVo never asked the Court of Appeals to issue a ruling on the hardware claims with the newer interpretation of the claims. It is the Court of Appeals that redefined the hardware claims and remanded them back to District Court, so they could exercise any further proceedings.

I am not trying to save the world, or the DISH DVR. I am simply pointing out there is another side to the story, that appears to be much more firm than the side most are arguing, here.


----------



## kog

I really doubt Tivo will ask for a summary judgment in this upcoming meeting on May 30th. I believe they will just try to push home the injunction that has already been issued and get Dish to turn off the listed DVR's even with the new software. If that goes through and Dish still does not deal with Tivo on a licensing agreement THEN you will see Tivo go back to court to try and reinstate the hardware claim so they can get MORE Dish DVR's turned off.

Actually, does anyone know if Tivo has put on their books the cash award from this trial? I know Dish has put it into their financials but has Tivo?


----------



## jacmyoung

Greg Bimson said:


> No briefs have been filed at this time. That is the request of the court now. TiVo's briefs are due 16 May, and DISH/TIVO's are due 23 May.


If that was the only reason the appeals court could not rule on the equivalents, why even mention the jury? Not that the jury could be briefed anyway they could not come back to be briefed, could they?



> The reason I give a 50/50 chance is because TiVo may have a different plan of attack that what I see. I am no lawyer, and TiVo has some hotshot lawyers, so they can figure it out


I see, I just thought if it is such a slam dunk as you said why 50/50.



> TiVo never asked the Court of Appeals to issue a ruling on the hardware claims with the newer interpretation of the claims. It is the Court of Appeals that redefined the hardware claims and remanded them back to District Court, so they could exercise any further proceedings.


Tivo did ask the appeals court to rule on the equivalents, which was why the response from the appeals court.



> I am not trying to save the world, or the DISH DVR. I am simply pointing out there is another side to the story, that appears to be much more firm than the side most are arguing, here.


Well then I hope you will not say so again to give people the impression that you are trying to save everyone from heart attack, because that was the impression I got.


----------



## Greg Bimson

jacmyoung said:


> I see, I just thought if it is such a slam dunk as you said why 50/50.


Because it could delay some aspect of the case.

Besides, there are others around here that believe the injunction is not in full effect, that the injunction order does not include DVR's with newer software, and that there is most definitely a way to get those DVR's excluded from the injunction.

This is a patent infringement case that TiVo has won, yet DISH/SATS will have no real penalties slapped on them, other than the awarded damages? The "slam dunk" arguments are coming from both sides.


----------



## Greg Bimson

James Long said:


> If I were a DISH reseller I would rely on the advice of the company that is at the center of this issue. If I could not trust their advice I would stop reselling their service and sell something else.


You'd rely on TiVo? 


James Long said:


> I wouldn't put a lot of stock in internet doomsday announcements from outsiders.


In all seriousness, if I were a reseller and received notice that I am now subject to an injunction, I'd check with my lawyer.


----------



## peak_reception

Lord help me, I'm reading through the last few pages of Tivo user forum links provided by mark722. 

So far, what I notice is that there are some familiar names there. Undoubtedly there is cross-posting. I also notice that, re: this court case, there are DISH advocates there, as well as Tivo advocates here. One poster there, well versed on the subject, even calls the case "extortion" which he argues with a lot of passion. That user is located in Littleton CO which can't be far from DISH HQ in Englewood. 

As for Tivo interested parties in general being more hostile than DISH interested parties on this subject, doesn't that make sense? They are the ones claiming that their lawful patent(s) was/were/are unlawfully used by EchoStar/DISH/SATS. And they've been vindicated in that claim by a jury's verdict that DISH unlawfully infringed. Then confirmed in the judgment by an appeals process that found no grounds to change that ruling. So yes, a plaintiff, with damages unredressed, is usually angrier than a defendant, unrepentant. Angry enough to go through years and years of litigation in this case and still with nothing to show for it but the damages already due for $90 M, as yet unpaid. What's it been, 4 or 5 years now since the litigation was initiated? I'd be angry too. 

Ok, now back to the Tivo forums


----------



## James Long

Greg Bimson said:


> You'd rely on TiVo?


Has Tivo spoken? Lately?

I'd listen to Tivo ... their opinion matters as they have skin in the game and will have to defend their opinion with actions.



> James Long said:
> 
> 
> 
> I wouldn't put a lot of stock in internet doomsday announcements from outsiders.
> 
> 
> 
> In all seriousness, if I were a reseller and received notice that I am now subject to an injunction, I'd check with my lawyer.
Click to expand...

That could have been said without the past 900 posts (multiple threads). 

Any valid counsel would be better than rambling speculation on the internet.


----------



## James Long

peak_reception said:


> So yes, a plaintiff, with damages unredressed, is usually angrier than a defendant, unrepentant. Angry enough to go through years and years of litigation in this case and still with nothing to show for it but the damages already due for $90 M, as yet unpaid. What's it been, 4 or 5 years now since the litigation was initiated? I'd be angry too.


Yep. Except it isn't Tivo making the angry statements ... it is Tivo fans, or anti-DISH posters who hate everything that DISH does for some apparently unconnected reason.

Posts made by people who are not going to get one penny of the $90+ million nor have their own DVRs affected if there was a shut off. No skin in the game at all. 

But it's not about the people ... it is about the case ... with brief moments of truth.


----------



## jacmyoung

Greg Bimson said:


> Because it could delay some aspect of the case.
> 
> ...


Depending on what you try to delay though. If I know DISH is not going to shut off the DVR's, then a speedy contempt hearing may open up an opportunity for DISH to provide its evidence and if the evidence is good enough the judge likely will have to stay the injunction while trying to sort out such new evidence.

It may be a better idea to keep the injunction in full force as long as possible, if Tivo knows DISH will continue to keep the DVR's alive no matter what. One of such way is to request motion for summary judgment, which can take time while the injunction continues to be in full force, besides the hardware issue is very important.

The reason I can see Tivo not going with such motion may be Tivo is not confident if it can prevail, meaning it is not a slam dunk for Tivo, not because Tivo does not want to delay things.


----------



## Teran

Just because I feel like fueling the flames, I'll argue...   

The judge can find Dish in contempt for not complying with the letter of the injunction.

The judge can order Dish to deactivate all receivers listed in the injunction by clarifying his order. He can do this without a finding of contempt. 

Dish can be found in contempt even if their new software is later found not to infringe and that finding of contempt can even survive appeal due to Dish technically violating the injunction.

Tivo can be prevented from arguing the doctrine of equivalents on its hardware claims. Should have done it sooner. That door is closed.


Disclosure: I owned one of the original Tivos. I used to be a DirecTV subscriber and had two Tivo units with them (they are still in my closet). I am now a Dish subscriber and have a 622. I do not work for or own stock in any of these companies.


----------



## Greg Bimson

James Long said:


> I'd listen to Tivo ... their opinion matters as they have skin in the game and will have to defend their opinion with actions.


The only statements I've seen made are by TiVo CEO Ramsey, and he mentioned something about DISH/SATS risking a contempt of court proceeding.


jacmyoung said:


> It may be a better idea to keep the injunction in full force as long as possible, if Tivo knows DISH will continue to keep the DVR's alive no matter what. One of such way is to request motion for summary judgment, which can take time while the injunction continues to be in full force, besides the hardware issue is very important.


To a point, correct!

For example, I believe that TiVo could request an emergency hearing to start a contempt proceeding, since we all know that DISH/SATS is violating the letter of the injunction. Because TiVo hasn't done so this week, I'd be more inclined to believe TiVo is working with a gameplan in mind.


----------



## inkahauts

jacmyoung said:


> I have been waiting for someone to throw such logic at me. A vallid point, we are talking punishment that fits the crime.
> 
> Let's think about this case carefully, let's not even consider the difference between a civil and a criminal case, because your example was a crimnal case I believe.
> 
> But consider just purely from the point of whether the punishment fits the crime.
> 
> First let's be very clear, the assumption is DISH can prove its software no longer infringes, and DISH's hardware never infringed. If DISH's software still infringes and the hardware can again be found to be infringing, all bets are off.
> 
> But one must admit as of now, DISH' hardware never infringed, and you must also admit the possibility exists that DISH can prove its new software no longer infringes.
> 
> It is very important to keep those in mind before I go into to my next step in response to your punishment fits the crime issue.
> 
> The judge had said he did not think DISH willfully infringed, as a result he did not even ask DISH to pay Tivo's legal cost, because he thought it would be unfair to impose such damage on DISH for the offense DISH did not commit, that is willful infringement. Let's also keep our eyes on the ball here, that the purpose of an injunction is to prevent future infringement. And again I ask you all to remember the above conditions, that the DISH new software no longer infringes, and its hardware never did infringe, meanning DISH no longer infringes in the future, meaning judge's intent to prevent future infringement would be met.
> 
> With me so far?
> 
> Now how much is the Tivo's legal fee are we talking about? 100 millon bucks? I don't thnk so but let's say it is.
> 
> How much would cost DISH to replace all 4 million DVR's? Two billion bucks is about right?
> 
> You mean to tell me the judge had in his heart to exampt DISH from paying 100 million dollars because he did not think DISH deserved that even considering the past offenses, but somehow he will not see the harm his injunction would cause DISH if it were to proceed as is, despite the fact DISH has already satisfied his purpose of no future infringement, that too bad DISH has to pay the equivalent of 2 billion dollars of punishment due to the same past offenses that the same judge has already consider too harsh a punishment for that extra 100 million Tivo legal fees to fit?
> 
> What do you all think this judge is? A moron? I have said he made two critical errors in this trial but I did not say he was a moron.
> 
> In fact from the legal standpoint the judge actually did exactly what the law asked him to do, to respond to Tivo's complaints in this trial.
> 
> It was Tivo who made the mistakes. Tivo should have request a verdict on hareware infringement on the equivalents during the trial, it did not, probably because Tivo was very confident DISH hardwware was guilty of literal infringement, so no need to even consider the equivalents, which is much easier to prove. During the appeal however Tivo had second thought, it asked the court to consider the equivalents if the court was to overturn on literal basis, but the appeals court basically said it was too late because the jury did not make a decision therefore no can't rule on the equivalents, your hardware verdict was overturned.
> 
> Now I said the second error was the judge did not take the advice from the appeals court to re-address the hardware verdict after the verdict was overturned, and let the injunction, which in part was based on the hardware verdict (which was overturned), to stand as is. Though I said it was the judge's second error, but technicall it may not be so. Remember when the hardware verdict was overturned, it should be Tivo's duty to request the judge to re-address the issue. But Tivo did not, herefore the judge did not have to either, because it is not the judge's job to tell Tivo what they should do, he decided to let the injunction take its own course, knowing that if in the future DISH can prove the new software no longer infirnges, the goal of the injunction will be met, and therefore DISH will not be in contempt. The judge is not a moron, he must have anticipated such possible outcome. He did not have to inform Tivo the consequences of such outcome. His job is to rule based on the outcome that is yet to come, his job is not to ensure Tivo be smart and win.
> 
> And if the outcome turns out to be that the DISH new software no longer infringes, and if Tivo does not ask for a summary judgement on the hardware claim, meaning DISH's hardware never infringed, then the judge will most certainly found the punishment of his injunction no longer fit the offenses, because remember, he has already decided that $100 million Tivo legal fees did not fit DISH's offsenses. So in his mind the $2 billion punishment will certainly not fit the same offenses, that is of course to assume DISH can convince him their new software no longer infringes.
> 
> Unless you are just so adamant that it is impossible for DISH to prove their new software does not infringe. If so the only thing I can say is yes you just want wish for Tivo to win it all and DISH to lose it all. And that is ok, but let's be clear that it is a baised wish, not an objective one, and likely just a wishful thinking.


I read all this.. And I see your point, but I think you might be missing something here. Do you really think the judge feels sorry for anyone? Thats what you make it sound like. I think he's just been giving everyone plenty of room to make there points, and just because he didn't think that there was enough evidence to find Dish guilty of willfully infringing doesn't mean he won't turn off their DVR's if they are found in contempt just because it would cost Dish a billion dollars and tivo is a smaller fish and only stands to get $100 million or so when everything is said and done.

The argument you used in this post is based on the judge having an emotional feeling about this and making mistakes. Maybe the idea he has made a mistake is your opinion, and that he hasn't made one, and has simply tried to give both sides as much time as possible to work out a settlement, which is usually the best conclusion in these events. However, at some point, the Judge may decide that either one of the parties is trying to take advantage of his leniency, (since they are now blatantly defying the injunction) and may step up his punishment to the letter of the law because he sees no other way to bring all of this to a final conclusion. Maybe he will find the software no more than collorablly different. Judges have a unique ability to apply letter of the law, or intent of the law, and maybe he was going for intent right now in his mind, but could move to letter if someone doesn't give. Lets face it, if the judge really didn't think Tivo was right he would have thrown out the entire verdict, not just the willfulness claim.... He's not favoring Dish, as you basically seem to suggest. Now if you have pictures of the underhanded money Dish has been slipping the judge.....


----------



## inkahauts

James Long said:


> Replay had "A" patent, but not the patent. Tivo patented a different way of doing it.
> Now Echostar have filed their own patent that is different from Tivo's.


Ah, can you tell me where you got that information. I didn't know that the settlement that ReplayTV and Tivo came to years ago had been released to the public.

I believe that Replay did have THE patent, they just didn't have the money to fight it, and since Tivo decided to counter sue, Replay was afraid they would run out of money, even though they would have won based on merits. (Replay was quick with the hardware and software, but slow on the legal side of everything) So, they decided to agree that ALL their patents would not be tested by either of them, and that they agreed to NEVER sue each other. Replay stayed alive, and Tivo didn't loose all its money to tivo..... Tivo and Replay can not sue each other. That is the one thing that everyone has gathered out of the entire settlement.

No one has said if either of them didn't walk away from certain patents claims so the other could have it... Also, how do you know Dish software isn't infringing a Replay patent as well? Its never been tried in court, and likely never will be... But I can also tell you, tivo will never be suing Directv....


----------



## Curtis52

inkahauts said:


> Tivo and Replay can not sue each other. That is the one thing that everyone has gathered out of the entire settlement.


Their lawsuits were dismissed without prejudice. That meant they were free to sue each other again. Replay was being sued out of existence by the studios and didn't have the resources to continue the lawsuits. TiVo knew they couldn't get blood out of a turnip. In fact, Replay declared bankruptcy four months later. There was no known agreement other than to drop the lawsuits. I guess this doesn't have much to do with Dish so that's all I'm saying about it here.


----------



## Herdfan

James Long said:


> And yet you continue to ignore the clear statements of DISH Network on the matter.


Sorry, but DISH doesn't have a good track record here.


----------



## Herdfan

peak_reception said:


> DirecTV subscribers (only) who want DISH to go out of business are foolish. Sure D* would gain a load of new subscribers [good for stockholders]. But then, without DISH competition, the price of being a D* subscriber would probably rise at a much faster rate. Good for D* stockholders; bad for D* subscribers.


Absolutely. Cable is not going to be a real competitor in the HD wars for a while. As subs, we need these companies doing battle for every sub as hard as they can. It benefits us all.


----------



## jacmyoung

inkahauts said:


> I read all this.. And I see your point, but I think you might be missing something here. Do you really think the judge feels sorry for anyone? Thats what you make it sound like. I think he's just been giving everyone plenty of room to make there points, and just because he didn't think that there was enough evidence to find Dish guilty of willfully infringing doesn't mean he won't turn off their DVR's if they are found in contempt just because it would cost Dish a billion dollars and tivo is a smaller fish and only stands to get $100 million or so when everything is said and done.
> 
> The argument you used in this post is based on the judge having an emotional feeling about this and making mistakes. Maybe the idea he has made a mistake is your opinion, and that he hasn't made one, and has simply tried to give both sides as much time as possible to work out a settlement, which is usually the best conclusion in these events. However, at some point, the Judge may decide that either one of the parties is trying to take advantage of his leniency, (since they are now blatantly defying the injunction) and may step up his punishment to the letter of the law because he sees no other way to bring all of this to a final conclusion. Maybe he will find the software no more than collorablly different. Judges have a unique ability to apply letter of the law, or intent of the law, and maybe he was going for intent right now in his mind, but could move to letter if someone doesn't give. Lets face it, if the judge really didn't think Tivo was right he would have thrown out the entire verdict, not just the willfulness claim.... He's not favoring Dish, as you basically seem to suggest. Now if you have pictures of the underhanded money Dish has been slipping the judge.....


To ensure punishment fits the crime is not an emotional matter, IMO it is the duty of the judge to do so. If you noticed I said Judge did not make mistakes, Tivo did. It was not the judge's job to ensure Tivo always did the right thing and win, it would be partial if he did that.

If Tivo does not ask for a contempt hearing, I could be wrong but I don't think the judge will be compelled to do anything. After all, it was Tivo who brought up this case in order to seek relief, if they choose not to continue to seek relief, the judge is not compelled to insist they do.

And one of such reasons why Tivo may not seek contempt of court hearing may be Tivo sees merit in the DISH new software claim. If Tivo thinks there is a good chance DISH can prevail in their new software claim, Tivo may not want to risk such hearing to give DISH that opportunity, rather Tivo may seek other forms of relief while letting the injunction stay in full force.

Those may be a motion for summary judgment on the hardware claim, requesting a separate injunction on the newer DISH DVR's, requesting DISH to pay Tivo's legal fee citing willful infringement verdict by the jury, requesting additional damages to cover the post 03/06 period, or some other forms of relief.

But finding DISH in contempt will be the most forceful way to get DISH to settle. If Tivo does not go for that in its next filing, then the indication will be DISH has a claim.


----------



## Curtis52

jacmyoung said:


> And one of such reasons why Tivo may not seek contempt of court hearing may be Tivo sees merit in the DISH new software claim.


TiVo CEO 03-05-08

"In terms of the EchoStar, there's no new information that we have on workaround, other than I'd say that we remain very, very skeptical of any workaround here that EchoStar has put forward and most of the claims they have made in terms of what their position is and where things stand over the course of this litigation have been shown to be totally incorrect and our view is that this will be shown to be totally incorrect as well."

03-12-08

"Speaking at the Bear Stearns 21st annual Media Conference in Palm Beach, Fla., Rogers said EchoStar, run by Charlie Ergen, will "ultimately have to own up to this issue," and he said that the longer it drags on the more it "plays into TiVo's hands."

Rogers said investors shouldn't be distracted by claims from EchoStar that it has deployed a software workaround so that its DVRs no longer infringe TiVo's patents, thus avoiding having to shut down its customers' DVRs.

Rogers said that, after consulting with engineers and lawyers, it is "highly, highly unlikely" that EchoStar has indeed built and deployed such a solution.

"Everything EchoStar has said about this case has turned out not to be the case," he said.


----------



## Greg Bimson

jacmyoung said:


> To ensure punishment fits the crime is not an emotional matter, IMO it is the duty of the judge to do so. If you noticed I said Judge did not make mistakes, Tivo did. It was not the judge's job to ensure Tivo always did the right thing and win, it would be partial if he did that.


TiVo made mistakes? How's this for devil's advocate?


jacmyoung said:


> It was Tivo who made the mistakes. Tivo should have request a verdict on hareware infringement on the equivalents during the trial, it did not, probably because Tivo was very confident DISH hardwware was guilty of literal infringement, so no need to even consider the equivalents, which is much easier to prove. During the appeal however Tivo had second thought, it asked the court to consider the equivalents if the court was to overturn on literal basis, but the appeals court basically said it was too late because the jury did not make a decision therefore no can't rule on the equivalents, your hardware verdict was overturned.


I could be wrong, but I believe the judge instructed the jury that if a verdict is reached regarding literal infringement, that the doctrine of equivalents did not need be determined, which would have been a mistake by the judge.

Remember, this same Court of Appeals actually stated that since neither DISH/SATS nor TiVo addressed this issue in their briefs to the Court of Appeals that they could not make a decision regarding infringement on the doctrine of equivalents. Here, the suggestion is that TiVo should have filed a brief addressing infringement by the doctrine of equivalents with the Court of Appeals, and this point may have been addressed an adjudicated. If one wants to call that an error, fine.

HOWEVER, when describing the points for the doctrine of equivalents ruling, one must remember that DISH/SATS knew of an injunction that would most likely be accepted if the Court of Appeals did not reverse the judgment nor the verdict. DISH/SATS made a grave error by not addressing the language of the injunction at the Court of Appeals. DISH/SATS could have argued that any change to the verdict must be reflected in the injuction ordered by the District Court judge.

Because DISH/SATS did not even address the injunction at the Court of Appeals, they are now subject to it. That was a big mistake.


----------



## James Long

A draft of the jury instructions was available for all parties to review before they were given to the jury. Tivo's responsible position would be to review those instructions and make sure that there were no errors.

Blaming Judge Folsom only goes so far.


----------



## jacmyoung

Greg Bimson said:


> TiVo made mistakes? How's this for devil's advocate?


Because they did not ask the judge for all parties to be briefed on the equivalent issue, and did not ask the judge to include the equivalents as party of argument, and when the judge instructed the jury to exclude such issue Tivo did not object to it.



> Because DISH/SATS did not even address the injunction at the Court of Appeals, they are now subject to it. That was a big mistake.


Because just like it is not the judge's job to ensure Tivo does the right thing, it is also not DISH's job to ensure Tivo or the judge for that matter do the right thing. DISH has been successful already in getting one verdict over turned on technicality, why not try another one?


----------



## Greg Bimson

jacmyoung said:


> Because just like it is not the judge's job to ensure Tivo does the right thing, it is also not DISH's job to ensure Tivo or the judge for that matter do the right thing. DISH has been successful already in getting one verdict over turned on technicality, why not try another one?


Because procedurally the time to challenge an injunction is before it ever takes effect. Once in effect, the only way around an injunction is to receive a ruling during a contempt proceeding that the issue is not part of the injunction. That would be where many are stating the 510 is no longer subject to the injunction because it contains new software. That should have been addressed in the language of the injunction, and therefore should have been addressed by DISH/SATS at the Court of Appeals. Having it addressed at a contempt hearing is not the best forum, since the way the injunction is written those models are supposed to no longer be sold, and possibly have DVR functions turned off, soon.


----------



## Teran

Greg Bimson said:


> Because procedurally the time to challenge an injunction is before it ever takes effect. Once in effect, the only way around an injunction is to receive a ruling during a contempt proceeding that the issue is not part of the injunction. That would be where many are stating the 510 is no longer subject to the injunction because it contains new software. That should have been addressed in the language of the injunction, and therefore should have been addressed by DISH/SATS at the Court of Appeals. Having it addressed at a contempt hearing is not the best forum, since the way the injunction is written those models are supposed to no longer be sold, and possibly have DVR functions turned off, soon.


It is also possible that "each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them" will be named in the motion for contempt. The injunction is likely to remain in effect as originally worded until a ruling on the motion is complete.


----------



## Teran

The safest thing for Dish to do is to file a motion to modify the permanent injunction. Trying to argue that their new software doesn't infringe during a contempt hearing opens them and many other people up to damages and fines if the court doesn't agree.


----------



## jacmyoung

Greg Bimson said:


> ... Having it addressed at a contempt hearing is not the best forum, ...


May be DISH's plan was to have the entire injunction oveturned on appeal due to technicality. If so there is no other forum than a contempt hearing to address it.


----------



## Greg Bimson

There is a chance to modify the permanent injunction. However, I would think that road is also frought with issues, because no one knows if the new software continues to infringe upon the same claims.


----------



## Curtis52

James Long said:


> The podcast you linked is in no way an official communication of DISH Network ... nor do it's producers ever claim that. They are just people, like us, discussing what they know based on the information at hand and speculation.


The podcast was based on a Dish retailer chat presented by Dish on channel 999. The general public can't watch it.


----------



## James Long

That does NOT make it an official communication ... nor does the podcast claim to be an official communication of DISH.


----------



## Curtis52

James Long said:


> That does NOT make it an official communication ... nor does the podcast claim to be an official communication of DISH.


Correct. I just wanted to expand on what you wrote to tell the whole story.


----------



## James Long

Sorry, I forgot that you are just here to continue arguing. Carry on as you do best!


----------



## Curtis0620

James Long said:


> Sorry, I forgot that you are just here to continue arguing. Carry on as you do best!


Looks like this is getting personal.


----------



## Teran

jacmyoung said:


> May be DISH's plan was to have the entire injunction oveturned on appeal due to technicality. If so there is no other forum than a contempt hearing to address it.


No so. Dish can file a motion to modify the injunction and have an opportunity to state their reasons why and how they think the injunction should be altered. They don't have to wait for Tivo to move first.


----------



## Teran

The purpose of an injunction is coercive, not punitive. That is, it is put in place to force/coerce the defendant to correct the problem. It isn't there to punish them for their past behavior. If Dish has truly come into compliance by their changes to the software and can convince the court of that then they can get the injunction modified. It isn't likely that can get it completely lifted since they have end-of-lifed some of the offending devices, though. Unless, of course, they can show that those devices have completely been retired.


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## phrelin

Couple of questions for the legal types out there:

_*Under the order*_ could I convert my 508's to browse the internet by using the expansion port and different software or would that be a violation because it isn't "turned off".
If it is ok to use it to browse the internet, is it a violation to use my 508's to record some video content off the internet using that software along with some of the new Dish code?
:grin:


----------



## peak_reception

Teran said:


> The safest thing for Dish to do is to file a motion to modify the permanent injunction.


 That's a very good point. And since the injunction was penned by Judge Folsom (wasn't it?) then Judge Folsom would certainly be entitled to modify his own injunction. I guess it may all depend on how much leeway he's still willing to give DISH.


----------



## Curtis52

Teran said:


> The safest thing for Dish to do is to file a motion to modify the permanent injunction.


According to the Dish statements they seem to be happy with the injunction as written. If they made such a request I'm betting a contempt of court motion would be acted on first.


----------



## peak_reception

Teran said:


> The purpose of an injunction is coercive, not punitive. That is, it is put in place to force/coerce the defendant to correct the problem. It isn't there to punish them for their past behavior.


 Another very good point! (where have you been for the last few months?) If DISH can demonstrate compliance up to where it meets their motion for cause that they no longer infringe, maybe they can wiggle out of too much additional trouble. OTOH, if Judge Folsom is willing to modify or temporarily stay his injunction, and DISH doesn't deliver the goods (i.e. proving that their workaround software no longer infringes), then at that point DISH would be in a world of trouble. All speculation of course


----------



## jacmyoung

Teran said:


> No so. Dish can file a motion to modify the injunction and have an opportunity to state their reasons why and how they think the injunction should be altered. They don't have to wait for Tivo to move first.


But they don't have to and apparently they have not shown the intention to do so because they declared they are in compliance with the injunction, why change it? They can wait till Tivo asks the judge to find DISH in contempt, and DISH can argue during the contempt hearing that the injunction requirement has been met, and if the judge says no, DISH can appeal, and during the appeal they can ask the appeals court to overturn the whole injunction on technicality.

Tivo on the other hand has its own risk. If they seek a quick resolution, that will be to ask for a contempt of court hearing, but they risk having the entire injunction overturned on technicality. If they instead motion for a summary judgment, it can take a long time for a resolution, while DISH's DVR's tick on.

And if after all the appeals the summary judgment on the hardware is still intact, they can then ask for contempt hearing on a much solid ground. But again it takes time, and that gives DISH more opportunity to infringement-proof their new software.


----------



## James Long

Curtis52 said:


> According to the Dish statements they seem to be happy with the injunction as written.


In my opinion, they need to be happy with it as is. If they ask for a _change_ in the injunction it could be an admission that they are not following the injunction. Even a "please remove from the list of infringing DVRs the models that no longer infringe" is a recognition that those models need to be removed for DISH to leave them active and comply. The hard line answer they have given is "we're compliant". They should stick by it.

In my opinion, DISH _not_ asking for a change is better ... let Tivo ask for the change (adding ViP series DVRs) and DISH can respond to the issue in their reply. Simply follow the timeline the court has set forth for the next conference, without stirring the pot.


----------



## Greg Bimson

But with the above statement by James, you now understand why I state TiVo _should_ ask for a summary judgment on hardware claims. If given with a guilty verdict, the entire point becomes moot.


----------



## Paul Secic

keenan said:


> Unless the Supreme Court agrees to hear/rule on the appeal made by Dish, it's a done deal, all that remains is for the money to change hands or Dish works out a deal with TiVo.
> 
> I don't see the SC even putting this case on the calender.


Maybe in October when the Supreme Court comes back.


----------



## HobbyTalk

I'm still waiting for those fireworks that was claimed was going to happen.


----------



## James Long

May 30th ... or May 16th and 23rd via filings.


----------



## jacmyoung

Greg Bimson said:


> But with the above statement by James, you now understand why I state TiVo _should_ ask for a summary judgment on hardware claims. If given with a guilty verdict, the entire point becomes moot.


And if so they should have asked for it before the injunction was in full force. The fact Tivo did not do so underscores the difficulties a mover (one asks for it) of a summary judgment faces. The mover is taking a great risk in such action because the law requires that the non-mover must be given all considerations in defeating such action, and for a good reason, because the jury did not provide such verdict.


----------



## peak_reception

HobbyTalk said:


> I'm still waiting for those fireworks that was claimed was going to happen.


There was -- as still is -- some confusion about whether the 30 day post injunction period for compliance had timed out or not. Given Judge Folsom's new timeline, apparently not. Either way, Fireworks will certainly come by the 4th of July


----------



## Greg Bimson

Hobby Talk said:


> I'm still waiting for those fireworks that was claimed was going to happen.





jacmyoung said:


> And if so they should have asked for it before the injunction was in full force.


They couldn't. The case just got back to the District Court this week, and the hearings are now scheduled. The earliest the hardware issue can be brought up to the judge is 16 May. So that will have to be when the fireworks start.


----------



## jacmyoung

Greg Bimson said:


> They couldn't. The case just got back to the District Court this week, and the hearings are now scheduled. The earliest the hardware issue can be brought up to the judge is 16 May. So that will have to be when the fireworks start.


If so the judge could have gathered the kids around have a little chat before letting the injunction go in full force. Who knows maybe Tivo wanted to modify the injunction to make it more bullet proof.

Regardless the excitement we tried to generate in the past few days, the bottom line is DISH needs to prove their new software no longer infringes, not only on the software part, but any hardware issues in question that were related to the old software. My guess is they likely will be successful because they already had a road map as what needed done to get around the issues that got them in trouble during the trial.

I would even concede that even DISH can get around most of the patent issues, there maybe some that are very difficult to do and as a result the future DISH DVR may not be as robust, at least for some time before they come up with solutions. But most certainly they will do anything to make the new software non-infringing, even if they have to live with a half-assed DVR for awhile.


----------



## peak_reception

jacmyoung said:


> Regardless the excitement we tried to generate in the past few days, the bottom line is DISH needs to prove their new software no longer infringes, not only on the software part, but any hardware issues in question that were related to the old software.


But hardware issues would still be in play even if new workaround software passes muster (found to be non-infringing), yes? Aren't they two separate issues? And wouldn't a summary judgment against hardware be even harder to beat and more devastating if upheld on appeal? My understanding is that a summary judgment on hardware -- if it was found to be infringing by Judge Folsom -- could be appealed. Correct me if that is mistaken.


----------



## jacmyoung

peak_reception said:


> But hardware issues would still be in play even if new workaround software passes muster (found to be non-infringing), yes? Aren't they two separate issues? And wouldn't a summary judgment against hardware be even harder to beat and more devastating if upheld on appeal? My understanding is that a summary judgment on hardware -- if it was found to be infringing by Judge Folsom -- could be appealed. Correct me if that is mistaken.


No the hardware claim at issue has to do with how the specific hardware components are utilized by the software, not the DVR box itself, that is why DISH can design new software to get around such components to avoid hardware infringement.


----------



## Greg Bimson

jacmyoung said:


> If so the judge could have gathered the kids around have a little chat before letting the injunction go in full force. Who knows maybe Tivo wanted to modify the injunction to make it more bullet proof.


Impossible. The injunction went live before the case ever made it back to District Court.


jacmyoung said:


> No the hardware claim at issue has to do with how the specific hardware components are utilized by the software, not the DVR box itself, that is why DISH can design new software to get around such components to avoid hardware infringement.


Without seeing the claims on the pending patent by SATS, we don't know if they designed the new software to work around the hardware claims. Heck, for all we know, the patent applied for by SATS technically could still depend on use of the hardware claims in the Time Warp patent. I know what the abstract in the pending patent says, but who knows?


----------



## Curtis52

Greg Bimson said:


> Impossible. The injunction went live before the case ever made it back to District Court.


deja vu


----------



## Greg Bimson

And then people wonder why there are pages and pages of the same argument!


----------



## jacmyoung

Greg Bimson said:


> Impossible. The injunction went live before the case ever made it back to District Court. Without seeing the claims on the pending patent by SATS, we don't know if they designed the new software to work around the hardware claims. Heck, for all we know, the patent applied for by SATS technically could still depend on use of the hardware claims in the Time Warp patent. I know what the abstract in the pending patent says, but who knows?


Not impossible at all, the judge does not have to let the injunction automatically go in force, he could delay it. In fact we all remembered what happened in the distants case, when the judge was mandated by the appeals court to slam the door on DISH he gave both parties a chance to have the last wishes known.

In fact Tivo should be able to ask the judge to stay the injunction or even lift it any time it wishes, or even call off the whole thing, I could be wrong but that is what I think.


----------



## Greg Bimson

jacmyoung said:


> Not impossible at all, the judge does not have to let the injunction automatically go in force, he could delay it. In fact we all remembered what happened in the distants case, when the judge was mandated by the appeals court to slam the door on DISH he gave both parties a chance to have the last wishes known.


Sure, but this judge did not delay the injunction back on 8 September, 2006. The Court of Appeals had to stay the injunction the very next day. When the Court of Appeals removed the stay so that the injunction took hold seven days after the appeals process had ended, the case was not back at the District Court. Unless there was an emergency proceeding, no one was going to delay anything.


jacmyoung said:


> In fact Tivo should be able to ask the judge to stay the injunction or even lift it any time it wishes, or even call off the whole thing, I could be wrong but that is what I think.


True, to a point. And as long as TiVo proves that DISH/SATS is in contempt, fighting the injunction becomes darn near impossible.


----------



## Curtis52

jacmyoung said:


> Not impossible at all, the judge does not have to let the injunction automatically go in force, he could delay it.


The ball wasn't in his court. The appeals court reinstated the injunction. This has been explained a dozen times.


----------



## Presence

Stay tuned to see who will get the last word.

In the meantime: endless circular arguments.


----------



## Greg Bimson

Because of errors in understanding procedure.


----------



## Herdfan

jacmyoung said:


> Not impossible at all, the judge does not have to let the injunction automatically go in force, he could delay it.


Someone correct me if I am wrong, but the injunction IS in force. One of the provisions gave DISH and additional 30 days to shut off the DVR's in the field, but they had to stop selling them immediately.

So if the judge does anything it would be to modify or stay an injunction already in force.


----------



## Curtis52

Herdfan said:


> Someone correct me if I am wrong, but the injunction IS in place. One of the provisions gave DISH and additional 30 days to shut off the DVR's in the field, but they had to stop selling them immediately.
> 
> So if the judge does anything it would be to modify or stay an injunction already in force.


Well, I agree with you but Dish doesn't. They seem to be happy with the injunction.


----------



## jacmyoung

Greg Bimson said:


> ... Unless there was an emergency proceeding, no one was going to delay anything....


So it is not impossible then, and whose fault is it that no one was going to delay anything to clear out some important issue, such as half of the verdict was overturned? What could be more important than having half of the basis your case was based on taking away from you?


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## Curtis52

jacmyoung said:


> So it is not impossible then, and whose fault is it that no one was going to delay anything to clear out some important issue, such as half of the verdict was overturned? What could be more important than having half of the basis your case was based on taking away from you?


The appeals court liked the injunction. Dish likes it. TiVo likes it. You seem to be the only one that doesn't like it.


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## Greg Bimson

jacmyoung said:


> So it is not impossible then, and whose fault is it that no one was going to delay anything to clear out some important issue, such as half of the verdict was overturned? What could be more important than having half of the basis your case was based on taking away from you?


No, impossible in the sense that the injunction would take hold. There was no way around it. The only "emergency" anything is if TiVo, on Monday, prior to the District Court scheduling hearings, asked for an emergency contempt hearing, for DISH/SATS possible violations of the standing injunction.

The earliest TiVo can do anything regarding the hardware claims is 16 May. Any other belief is pure folly.


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## Equus911

Alrighty then...

I've read this entire thread from start to finish today and now I shall weigh in with my $.02.

IMO, the appellate judges were wrong in their handling of the injunction. Since they reversed and remanded the hardware portion of the verdict, then it was incumbent on them to address the original injunction as well, because the injunction was, on its face, _hardware_ injunction. It listed _hardware_ - model numbers - that were to be deactivated. The appeals court should have instructed the district court judge to revise his injunction to address the infringing _code_ that the hardware operates on, until such time as the hardware is deemed to also be infringing (if it ever is). The fact that they didn't address the injunction when reversing 50% of the injunction's basis seems a massive oversight to me.

So, now that's in the past and Dish has this injunction about model numbers it has to disable. I think it's been agreed upon that deciding whether or not the new code is also patent infringement must be handled with a new trial. So for this trial, Dish, by changing the code, has followed the _spirit_ of the injunction, but not the _letter_ of the injunction. This has, by precedent, often been found to be the more important.

Will the judge enforce the letter of the law he has laid down, simply because the hardware (in which infringement has not been upheld) has not been disabled? Unlikely. Judges don't do well by their careers by blindly enforcing the literal wording of an injunction when the defendant has already satisfied the intent of the injunction (to stop future infringement). As has been said before, the injunction is a protection for the plaintiff, not a punishment for the defendant.

As to the monetary damages, Dish definitely needs to pay the awarded monies as reparation to the damage done to Tivo by the patent infringement. I think that they should pony up that money immediately and it will help their case.


----------



## Curtis52

Judge Folsom anticipated that the appeals court might reverse some of the claims when he denied a stay.

"Defendants’ identification of issues and rulings it plans to appeal is lengthy. Upon review, it seems that the Court has previously considered each at length. Although Defendants may prevail on some of the issues, they have not demonstrated a strong likelihood of success on appeal that would overturn the jury’s verdict on all infringed claims."

He won't provide a stay. He gave the reasons why:

"Although the injunction will likely result in some degree of customer loss and will impact Defendants’ ability to compete in the market, Defendants will not be irreparably harmed. Again, Defendants’ core business is not the supply of DVRs. Defendants have not demonstrated that an injunction on the infringing products would have a severe financial impact on their core business or will lead to loss of employees. Defendants’ authorized retailers will still be able to sell and service Defendants’ non-infringing products. Conversely, absent an injunction, Plaintiff faces ongoing irreparable injury as detailed above."


----------



## Greg Bimson

Equus911 said:


> Will the judge enforce the letter of the law he has laid down, simply because the hardware (in which infringement has not been upheld) has not been disabled? Unlikely. Judges don't do well by their careers by blindly enforcing the literal wording of an injunction when the defendant has already satisfied the intent of the injunction (to stop future infringement). As has been said before, the injunction is a protection for the plaintiff, not a punishment for the defendant.


But you've now assumed something not in evidence as of yet: does the new software infringe? I know it is different, but does it infringe?

There are quite a few outstanding issues that need to be addressed, and we'll hear what TiVo's are a couple of days after 16 May.


----------



## Curtis52

Equus911 said:


> Will the judge enforce the letter of the law he has laid down, simply because the hardware (in which infringement has not been upheld) has not been disabled?


The hard drives do not have to be physically harmed. Dish just has to stop recording and playing back a TV signal.


----------



## jacmyoung

Equus911 said:


> ...IMO, the appellate judges were wrong in their handling of the injunction. Since they reversed and remanded the hardware portion of the verdict, then it was incumbent on them to address the original injunction as well, because the injunction was, on its face, _hardware_ injunction. It listed _hardware_ - model numbers - that were to be deactivated. The appeals court should have instructed the district court judge to revise his injunction to address the infringing _code_ that the hardware operates on, until such time as the hardware is deemed to also be infringing (if it ever is). The fact that they didn't address the injunction when reversing 50% of the injunction's basis seems a massive oversight to me.


The appeals court did ask the parties to address the hardware issues. They don't have to do the judge's work for him.



> So, now that's in the past and Dish has this injunction about model numbers it has to disable. I think it's been agreed upon that deciding whether or not the new code is also patent infringement must be handled with a new trial.


During the contempt hearing (if Tivo asks for one), the first thing judge will have to do is to determine if the new software is more than colorably different compared to the old infringing one. This is easier to pass than determining whether it is infringing. If the answer is yes the judge will have a hearing to determine if the new software is infringing or not, and such hearing can go on for some time since experts will testify, the new code will have to be carefully examined.



> So for this trial, Dish, by changing the code, has followed the _spirit_ of the injunction, but not the _letter_ of the injunction. This has, by precedent, often been found to be the more important.
> 
> Will the judge enforce the letter of the law he has laid down, simply because the hardware (in which infringement has not been upheld) has not been disabled? Unlikely. Judges don't do well by their careers by blindly enforcing the literal wording of an injunction when the defendant has already satisfied the intent of the injunction (to stop future infringement). As has been said before, the injunction is a protection for the plaintiff, not a punishment for the defendant.


I agree this is the proper way to handle things, but the judge does not have to do things based on the spirit of the law, he can still find DISH in contempt violating the language of the law, DISH will then appeal. During the appeal DISH will have quite a few targets to aim at, and just like the hardware claim, they can fail on everyone of them except one, they will be successful in over turning the verdict.



> As to the monetary damages, Dish definitely needs to pay the awarded monies as reparation to the damage done to Tivo by the patent infringement. I think that they should pony up that money immediately and it will help their case.


There is absolutely no need to volunteer payment until it is final. While DISH is prepared to pay it will still be its legal duty to fight each step of the way. The law is designed to allow that, taking advantage of the rights the law has afforded to them can not be used against them in the final assessment.


----------



## Equus911

jacmyoung said:


> The appeals court did ask the parties to address the hardware issues. They don't have to do the judge's work for him.


Asking the parties to address the hardware issues is a far cry from instructing the judge to revise his injunction because the basis of the injunction has been reversed. This is quite common in appellate court instructions to lower courts, so I don't see why they neglected to do it this time.

_I agree this is the proper way to handle things, but the judge does not have to do things based on the spirit of the law..._

No, he doesn't have to, but I believe he will. I predict he will see that the goal of his injunction has been achieved. And leave it at that.


----------



## James Long

The appeals court did not consider (nor should they have) the element of new software. As far as they are concerned, the injunction that was written based on the jury verdict was still useful as a remedy regardless of the hardware claims.

E* has apparently interpreted the injunction to read "only receivers running on software judged infringing" and has ended sales/installation on a few older models but has not disabled any DVR. Prior to that Tivo has expressed their doubts that a software change to avoid infringement could be accomplished. The court has set a timetable to follow up on any outstanding issues.

At this point the next move is Tivo's. When they set the agenda and list issues for the May 30th meeting they will tell E* and the court (and anyone who reads the court filing) what Tivo wants to happen next. This filing is due by May 16th with a response due from E* a week later.


----------



## Curtis52

It's been well over a week.


----------



## jacmyoung

James Long said:


> The appeals court did not consider (nor should they have) the element of new software. As far as they are concerned, the injunction that was written based on the jury verdict was still useful as a remedy regardless of the hardware claims...


Good point.

The bottom line is DISH must prove their new software no longer infringes, if so their hardware also no longer infringes. Keep in mind whether the hardware infringes or not hinged in part on where the A/V splitted. The new software claim described that the A/V no longer splits. Of course other elements must also be able to withstand the rigorous tests before DISH can prove the new software no longer infringes.

In that sense the reversal of the hardware claim is more symbolic than critical. In fact I never really understood why the hardware infringement was an issue, I did not read anywhere that Tivo holds any hardware patent for DISH to infringe in the first place. I might have missed it.


----------



## Curtis52

jacmyoung said:


> The new software claim described that the A/V no longer splits.


No it doesn't.


----------



## jacmyoung

Curtis52 said:


> No it doesn't.


The new software claim describes an entirely new way of storing A/V streams in order for later DVR operation. It does not use some index file to store information such as time markers, it does not process A/V at all, rather dump it on the hard drive, and when the DVR operations starts the software uses a statistical algorithm to guess the locations for retrieving the files.

Whether DISH had enough time to accomplish all the goals they said in that claim has yet to be determined, but you can rest assured when they say their software no longer infringes, they better make sure all the issues addressed during this trial were covered, and some more.


----------



## Curtis52

jacmyoung said:


> The new software claim describes an entirely new way of storing A/V streams in order for later DVR operation. It does not use some index file to store information such as time markers, it does not process A/V at all, rather dump it on the hard drive, and when the DVR operations starts the software uses a statistical algorithm to guess the locations for retrieving the files.
> 
> Whether DISH had enough time to accomplish all the goals they said in that claim has yet to be determined, but you can rest assured when they say their software no longer infringes, they better make sure all the issues addressed during this trial were covered, and some more.


We don't know whether Dish's patent describes new software that they use. Anyway, from the patent:

"demultiplexor 123 may produce a separate video-only packetized elementary stream (PES) and a separate audio-only PES stream."

That sure sounds like a split to me.

The patent is evidence of nothing.


----------



## jacmyoung

The patent application itself of course is not the evidence, the new software code will be. We however don't know what that code looks like, and we will never know as it is usually a trade secret. In this case only Tivo and the judge will know for litigation purpose.

But the patent application exposed a road map in DISH's defense strategy, and that is the new software is designed to get around the Tivo patent.

Speaking of trade secret, many like to blame DISH for stealing Tivo's code, in fact they did not steal it, Tivo give the code to DISH without first securing an agreement, a stupid thing to so.

Of course DISH took some from the code and used them to build its own DVR interface and told Tivo to take a hike. It was a stupid thing to do too. So it should not come to anyone's surprise DISH lost on the software infringement suit, even though they were mounting a rigorous defense for a long time.

But to then conclude because DISH lost in the past, therefore there is no way they can design a non-infringing software, is at a minimum premature. Maybe DISH has yet to accomplish it yet, maybe it did. We will just have to wait and see. But if I were Tivo, I will not bet on it being impossible, I'd get the code from DISH should the court proceeding get to that point, and I'd get the best engineers and lawyers locked up in a room and insist they sort through each and very command and instructions to find ways to disprove DISH's claim.


----------



## Curtis52

jacmyoung said:


> Speaking of trade secret, many like to blame DISH for stealing Tivo's code, in fact they did not steal it, Tivo give the code to DISH without first securing an agreement, a stupid thing to so.
> 
> Of course *DISH took some from the code* and used them to build its own DVR interface and told Tivo to take a hike.


I hope Dish doesn't sue you.


----------



## BNUMM

jacmyoung said:


> Good point.
> 
> The bottom line is DISH must prove their new software no longer infringes, if so their hardware also no longer infringes. Keep in mind whether the hardware infringes or not hinged in part on where the A/V splitted. The new software claim described that the A/V no longer splits. Of course other elements must also be able to withstand the rigorous tests before DISH can prove the new software no longer infringes.
> 
> In that sense the reversal of the hardware claim is more symbolic than critical. In fact I never really understood why the hardware infringement was an issue, I did not read anywhere that Tivo holds any hardware patent for DISH to infringe in the first place. I might have missed it.


Even if the software no longer infringes does not mean the hardware no longer infringes. If the "Doctrine of Equivalents" is considered then the hardware could be found to infringe. I don't agree with the "Doctrine of Equivalents" but it apears that it could be more of a problem for Dish than the software. If you are interested you can find it on Wikipedia. I have a 721 I would like to sell and the "Doctrine of Equivalents" has me concerned..


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## James Long

Curtis52 said:


> It's been well over a week.


And you are still a troll more interested in arguing than anything else.

:backtotop


----------



## Curtis52

James Long said:


> And you are still a troll more interested in arguing than anything else.


I'm more interested in discussion than personal attacks.


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## Greg Bimson

James Long said:


> And you are still a troll more interested in arguing than anything else.


Well, there are many reasons to continue arguing. For example...


jacmyoung said:


> The appeals court did ask the parties to address the hardware issues. They don't have to do the judge's work for him.


No, they didn't. The Court of Appeals was asked by DISH/SATS to rule on the interpretation of the hardware claims. No one briefed the court what should happen if the Court changed the interpretation of the hardware claims and reversed the verdict.

It is these types of misstatements that always need clearing up, and take up over 60 percent of the thread.


----------



## phrelin

Is this thread some kind of moot court for those studying patent law?


----------



## scooper

Greg Bimson said:


> Well, there are many reasons to continue arguing. For example...No, they didn't. The Court of Appeals was asked by DISH/SATS to rule on the interpretation of the hardware claims. No one briefed the court what should happen if the Court changed the interpretation of the hardware claims and reversed the verdict.
> 
> It is these types of misstatements that always need clearing up, and take up over 60 percent of the thread.


They are judges - they should have known without being briefed. Or am I assuming too much out of our "justice" system again ?


----------



## Greg Bimson

scooper said:


> They are judges - they should have known without being briefed. Or am I assuming too much out of our "justice" system again ?


Yes, at this point, you are assuming. 

Parties brief the Court of Appeals the points they wish considered. The reason the Court of Appeals had to reverse and remand the hardware claims is because neither TiVo nor DISH/SATS briefed the Court on deciding by the doctrine of equivalents.

Some will state that is TiVo's fault, they should have saw it coming. Meanwhile, there is an injunction that made it through the appeal unchanged which is now in full force and effect. One would think DISH/SATS would have briefed the Court of Appeals on changes to the injunction in case something was overturned.


----------



## Tom Robertson

Greg Bimson said:


> Yes, at this point, you are assuming.
> 
> Parties brief the Court of Appeals the points they wish considered. The reason the Court of Appeals had to reverse and remand the hardware claims is because neither TiVo nor DISH/SATS briefed the Court on deciding by the doctrine of equivalents.
> 
> Some will state that is TiVo's fault, they should have saw it coming. Meanwhile, there is an injunction that made it through the appeal unchanged which is now in full force and effect. One would think DISH/SATS would have briefed the Court of Appeals on changes to the injunction in case something was overturned.


Greg, it is my impression that in an appeal the briefs are to be limited to the actions of the lower court and not to open new doors, such as the changes to the injunction. Am I missing your point? Or is my impression of appeals incorrect?

Thanks,
Tom


----------



## Greg Bimson

Tom Robertson said:


> Greg, it is my impression that in an appeal the briefs are to be limited to the actions of the lower court and not to open new doors, such as the changes to the injunction. Am I missing your point? Or is my impression of appeals incorrect?


My belief, and I've never studied law, is that if something needed to be done to the injunction, DISH/SATS should have asked the Court of Appeals. After all, the Court of Appeals would have then adjudicated the lower court's action, specifically the issuance of the injunction.

If DISH/SATS felt the injunction as a point of law would have been incorrect once the decision to reverse the hardware claims had a material effect on the injunction, the Court of Appeals would have stayed the injunction with instructions to the District Court to rewrite the injunction.

Instead, the Court of Appeals simply let the injunction fly, because the infringement still stood after their decision, and no one (specifically DISH/SATS) briefed the court regarding changing the injunction.


----------



## Herdfan

BNUMM said:


> If the "Doctrine of Equivalents" is considered then the hardware could be found to infringe. I don't agree with the "Doctrine of Equivalents" but it apears that it could be more of a problem for Dish than the software. If you are interested you can find it on Wikipedia.


From Wikipedia:



> In the United States, there are two tests for determining whether an accused device or process is deemed to be equivalent. Under the first test (Graver Tank & Manufacturing Co. v. Linde Air Products Co., (1950)), called the "triple identity" test, something is deemed equivalent if:
> 
> It performs substantially the same function
> in substantially the same way
> to yield substantially the same result.
> Under the second test (Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997)) something is deemed equivalent if there is only an "insubstantial change" between each of the elements of the accused device or process and each of the elements of the patent claim. One limitation that has been placed on this doctrine is prosecution history estoppel, which prevents a claim from being made for infringement where the difference is something that the patentee had abandoned through an amendment to the patent. It is generally considered the case that the second test builds on the first test in a doctrine of equivalents analysis.
> 
> A doctrine of equivalents analysis must be applied to individual claim limitations, not to the invention as a whole.[1]
> 
> The United States also has a statutory equivalents doctrine that is codified in 35 U.S.C. § 112/6.


Could be very interesting on the hardware retrial.


----------



## James Long

Greg Bimson said:


> My belief, and I've never studied law, is that if something needed to be done to the injunction, DISH/SATS should have asked the Court of Appeals. After all, the Court of Appeals would have then adjudicated the lower court's action, specifically the issuance of the injunction.


When approaching the court of appeals it seems best not to use a shotgun approach ... E* focused on the decision itself ... saying what was wrong with the decision and successfully getting the hardware claims reversed and remanded. Add too many "and furthermore this is unfair and that is unfair and the other thing is unfair" just confuses the issues.

Based on the verdict of the jury there was nothing wrong with the injunction ... and the appeals court immediately stayed the injunction. The main reason now to argue that the injunction is not needed is because of facts that have changed since the court rulings - not something that could have been brought up on appeals.


----------



## Greg Bimson

James Long said:


> When approaching the court of appeals it seems best not to use a shotgun approach ... E* focused on the decision itself ... saying what was wrong with the decision and successfully getting the hardware claims reversed and remanded. Add too many "and furthermore this is unfair and that is unfair and the other thing is unfair" just confuses the issues.


Well, maybe DISH/SATS learned from their appeal in the distants case, since the brief they filed argued 16 points, of which only one was granted.

However, one would think with the injunction looming, that any material change to the injunction would have been addressed. It is definitely a valid point.


----------



## James Long

Without the software change the injunction would still be required.

It would have been _nice_ if the appeals court would have continued the stay until the hardware claims were resolved ... but the software claims being upheld is enough to make the injunction remain valid.

E* continues to appeal the decision ... and isn't likely to pay a dime until all appeals are exhausted. That is more likely going to be the #1 topic of Tivo's filing due May 16th ... "we have not been paid" ... followed closely by "E* DVRs continue to operate despite the injunction" (which will be the main point of contention ... if Tivo has more than an assumption that the new software also infringes it will be an interesting turn of events). I expect that they will mention the unresolved hardware claims and additional damages from when the appeal began - but Tivo needs to get some money!


----------



## jacmyoung

BNUMM said:


> Even if the software no longer infringes does not mean the hardware no longer infringes. If the "Doctrine of Equivalents" is considered then the hardware could be found to infringe. I don't agree with the "Doctrine of Equivalents" but it apears that it could be more of a problem for Dish than the software. If you are interested you can find it on Wikipedia. I have a 721 I would like to sell and the "Doctrine of Equivalents" has me concerned..


That is an interesting point.

First off let's keep in mind Tivo asked the appeals court if they could not find the hardware on literal infringement, then they should at least find infringement on equivalents.

When the appeals court over-turned the hardware verdict on a single literal infringement evidence, it had to do with where the A/V split might have happened. Tivo argued it did not matter, the split was a logical one, whether it happened at the Broadcom chip or the hard drive. The appeals court said no, for literal infringement to stick, it has to be certain where the split happened.

Now had the court considered the equivalents, it might have upheld the verdict on logical infringement, but it could not rule on it since the jury did not rule on it. In appeals court's view it was inappropriate to take the place of a jury.

The hardware verdict was overturned, and the court suggested the parties address the issue, no one did before the injunction automatically went into full force.

Now let's assume the equivalents issue is back on the table, that all parties (except the jury) are now briefed. And DISH is claiming that its new software no longer splits A/V streams. I know Curtis insists it still splits, but my understanding is the split Tivo argued about has to do with the uniqueness of the Tivo patent where A/V split occurs at the front end during indexing. And DISH's new software does not split A/V in that regard. It does eventually split the A/V since A/V splits in all STB's, so the audio is out on the audion output, and video is out on the video output. Just to assume this is the case to explain my view below:

If the DISH new software no longer splits A/V the same way Tivo does, then even when applying the doctrine of equivalents the hardware will not infringe.

Again, it is up to DISH to prove it, and if they do intend to prove it, you can bet they got their engineers and lawyers together worked on every detail presented in the trial, and made sure they could stick, whether on literal infginement or on the equivalents. Not doing so in the next round of contempt hearing will be suicidal.


----------



## BNUMM

You are using software to eliminate hardware infringements.


----------



## Curtis52

jacmyoung said:


> Now had the court considered the equivalents, it might have upheld the verdict on logical infringement, but it could not rule on it since the jury did not rule on it. In appeals court's view it was inappropriate to take the place of a jury.


Here comes that 60% again.

They said they could not rule on it because they hadn't been briefed on it.

"we could uphold the judgment on the basis of the doctrine of equivalents..."

" The parties, however, have not briefed that issue in any detail, and we therefore do not address it."


----------



## jacmyoung

BNUMM said:


> You are using software to eliminate hardware infringements.


Yes that was because so far I did not read anywhere said Tivo holds any hardware patent, and the fact the arguement about whether hardware was infinged or not had hinged on how the software utilized any individual hardware component.

Which explains another thing, and I think James had tried to point it out too, that the appeals court did not have to do anything about the injunction as long as the software claim was upheld, because the software is the key. Prove the new software no longer infringes, DISH is free of future adverse impact, otherwise DISH is in big trouble.

The hardware issue is only second thought, but may be used as a technicality argument, but since I have given it as an after thought, I will also admit the usefulness of such technicality argument may be very limited.


----------



## jacmyoung

Curtis52 said:


> Here comes that 60% again.
> 
> They said they could not rule on it because they hadn't been briefed on it.
> 
> "we could uphold the judgment on the basis of the doctrine of equivalents..."
> 
> " The parties, however, have not briefed that issue in any detail, and we therefore do not address it."


I will readily admit my own bias tended to have me giving less weight to the above appeals court wording, and I hope you and Greg can also admit with your bias, you tended to ignore the part where appeals court clearly implied their view of the importance of a jury's verdict, or the lack of it and how it can make the mover's task very difficult.

We each weigh in based on our own preferences, and the outcome of this trial will prove which is right which is wrong, maybe both can be right or wrong.

The only thing I can say is, never say never.


----------



## Curtis52

jacmyoung said:


> Yes that was because so far I did not read anywhere said Tivo holds any hardware patent,


Here are some of the hardware claims the jury said Dish infringed:

"32. An apparatus for the simultaneous storage and play back of multimedia data..."

"36. The apparatus of claim 32, wherein the storing and extracting of said video..."

"52. The apparatus of claim 32, wherein said storage device is connected..."


----------



## Curtis52

jacmyoung said:


> I will readily admit my own bias tended to have me giving less weight to the above appeals court wording


Saying the opposite of what the appeals court said is a l*ot* of bias.


----------



## Greg Bimson

jacmyoung said:


> I will readily admit my own bias tended to have me giving less weight to the above appeals court wording, and I hope you and Greg can also admit with your bias, you tended to ignore the part where appeals court clearly implied their view of the importance of a jury's verdict, or the lack of it and how it can make the mover's task very difficult.


No. No bias here. The Court of Appeals would issued a ruling had the Court been briefed on the matter. The fact that there was no brief regarding the doctrine of equivalents issue compelled the Court of Appeals to simply reverse the judgment on hardware infringement. If there were briefs filed on the doctrine of equivalents issue, it wouldn't have mattered what the jury said. It is because the Court cannot interpret what the jury would have done by changing the claim interpretation. Upon remand, that will be up to the judge at District Court.


----------



## jacmyoung

Greg Bimson said:


> ... It is because the Court cannot interpret what the jury would have done by changing the claim interpretation. Upon remand, that will be up to the judge at District Court.


And you have not proven upon the briefing by the district court the appeals court would easily accept such verdict without jury's input. So why can't you simply wait till the outcome of the trial on this issue?

If Tivo is to motion for a summary judgment on this issue, and if after DISH's objection the judge still grants Tivo such motion, and if after the judge grants such motion he finds in favor of Tivo, and if after DISH appeals such decision, the appeals court upholds such decision without jury's input, and if DISH continues on it appeal and exhaust its rights and still could not overturne such decision, then you will be right.

So let's wait and see, I don't think this is too much to ask.


----------



## Curtis0620

jacmyoung said:


> And you have not proven upon the briefing by the district court the appeals court would easily accept such verdict without jury's input. So why can't you simply wait till the outcome of the trial on this issue?
> 
> If Tivo is to motion for a summary judgment on this issue, and if after DISH's objection the judge still grants Tivo such motion, and if after the judge grants such motion he finds in favor of Tivo, and if after DISH appeals such decision, the appeals court upholds such decision without jury's input, and if DISH continues on it appeal and exhaust its rights and still could not overturne such decision, then you will be right.
> 
> So let's wait and see, I don't think this is too much to ask.


... and that licensing fee keeps going up and up.


----------



## jacmyoung

Curtis52 said:


> Here are some of the hardware claims the jury said Dish infringed:
> 
> "32. An apparatus for the simultaneous storage and play back of multimedia data..."
> 
> "36. The apparatus of claim 32, wherein the storing and extracting of said video..."
> 
> "52. The apparatus of claim 32, wherein said storage device is connected..."


The whole idea of the apparatus claimed in the patent is not a hardware patent, rather how the software utilizes such hardware component. The DISH new software claim was trying to demonstrate the way the hardware is used by the software is different.

The Tivo's patent describes an apparatus that acts as a temporary storage device, where a set of indexing broadcast streams are off loaded, where A/V are split, where time marker info is stored for later retrieval, where a separate buffer device is used when processing such index file info upon commend by the DVR end user.

The new DISH software claim uses no such things above, it does not use a temporary storage, it dose not store an index file, it does not store any time marker, it does not split A/V in that temporary device, and it does not use a buffer to process the time into.

It directly stores A/V streams onto the hard drive, when the end users make DVR commands, the software directly access such data on the hard drive, and uses some fancy statistical algorithm to guess the location of the file.

If DISH can accomplish that, they may not infringe on software nor hardware. Apparently DISH believes strongly they did so, and apparently you and Greg believe strongly DISH is lying, so how about we wait and see?

I hope this is also not too much to ask?


----------



## jacmyoung

Curtis0620 said:


> ... and that licensing fee keeps going up and up.


Apparently DISH does not care so why should we?


----------



## Curtis0620

jacmyoung said:


> Apparently DISH does not care so why should we?


Because it could eventually get to "we will never license to you." Will DISH care then?


----------



## jacmyoung

Curtis0620 said:


> Because it could eventually get to "we will never license to you." Will DISH care then?


No disrespect but honestly I don't care about the answer to that question at all. As long as my 625 continues to work, and as long as if the 625 shall be stopped, that I get a 622 as a replacement, or if the 622 must be stopped, DISH give me some even more advanced DVR as replacement, fine with me.

Because you know why, I am not that personally attached to any company. If Charlie must lose all his 10 billion personal wealth to continue to let me use his DVR, why should I worry? It is not my money.


----------



## Curtis0620

jacmyoung said:


> No disrespect but honestly I don't care about the answer to that question at all. As long as my 625 continues to work, and as long as if the 625 shall be stopped, that I get a 622 as a replacement, or if the 622 must be stopped, DISH give me some even more advanced DVR as replacement, fine with me.
> 
> Because you know why, I am not that personally attached to any company. If Charlie must lose all his 10 billion personal wealth to continue to let me use his DVR, why should I worry? It is not my money.


and if the hardware and/or software claims take these down along with all DISH DVR's? And you can't say this isn't possible.


----------



## jacmyoung

Curtis0620 said:


> and if the hardware and/or software claims take these down along with all DISH DVR's? And you can't say this isn't possible.


Anything is possible, that is what I have been saying all along, that the other side seems to be very certain something is impossible like DISH designing a non-infringing software.

The liklihood of DISH DVRs go non-DVRs though is very slim, because as I said over and over, it is in Tivo's interest to keep DISH DVRs alive so they can collect license fees. Soon they will not have DirecTV to collect fees, and they can not count on cable either, so DISH is their last hope.

That is another reason why I am not worried.


----------



## BNUMM

I believe a hard drive is an apparatus.


----------



## James Long

Curtis0620 said:


> Because it could eventually get to "we will never license to you." Will DISH care then?


Tivo would be stupid to turn down the money forever.

Do you believe Tivo is that stupid?


----------



## jacmyoung

BNUMM said:


> I believe a hard drive is an apparatus.


Yet the concept of a hard drive was never used to support the infringement claim.

Let me offer an analogy, that I claim a patent on my device:

Where a house is built to make such device useful;

Where a basement is also built in that house for my device;

Where a bathroom is again needed in that basement to use my device;

Where a toilet must also be installed in that bathroom;

Where a water tank is part of that toilet;

Where a valve is also used in the tank to turn the water on and off;

Where I have designed a tiny robot to control the valve in a way to best conserve water use.

Now I may have a patent on that little robot, but if I begin to claim anyone who builts a house, or a basement, or a bathroom, or a toilet, or a water tank used on a toilet, or a valve that turns water on and off inside the tank, they must pay me a license fee...

Who would you think I am?


----------



## James Long

If you had said that you had a patent on the little robot and you had an injunction that prevented a competitor from selling toilets or bathrooms it would be more to scale.

The challenge here is that the competitor now claims to have redesigned the toilet system they sell and have removed your robot (or at least the part that was judged as infringing on your robot) but they still offer a water conservation feature using a separate patent pending process. While the injunction may apply against all water conserving toilets known at the time of the suit, does it apply against future water conserving toilets that may or may not infringe?


----------



## Curtis0620

James Long said:


> Tivo would be stupid to turn down the money forever.
> 
> Do you believe Tivo is that stupid?


No, but the longer it takes they would be stupid not to increase the price.

Pay Now = $
Pay Later = $$$


----------



## James Long

Curtis0620 said:


> No, but the longer it takes they would be stupid not to increase the price.
> 
> Pay Now = $
> Pay Later = $$$


So you are backing away from your 'it could eventually get to "we will never license to you."' statement?

I agree that Tivo will seek as much money as they can get ... I don't agree that they would reach a point of "never".


----------



## Curtis52

From the verdict form:

"2. If "yes," which claims do you find that EchoStar infringed?
Hardware claims (please circle): 1, 5, 21, 23, 32, 36, 52
Software claims (please circle): 31, 61"

When the appeals court referred to hardware claims, what were they referring to?


----------



## James Long

To which post is that a reply?


----------



## Curtis0620

James Long said:


> So you are backing away from your 'it could eventually get to "we will never license to you."' statement?
> 
> I agree that Tivo will seek as much money as they can get ... I don't agree that they would reach a point of "never".


I just pointed out the other extreme since you guys are stuck at the complete opposite extreme (Cancel Injunction).

The final result will be somewhere in the middle. DVR's will still operate but DISH will pay a licensing fee to TiVo.


----------



## jacmyoung

James Long said:


> If you had said that you had a patent on the little robot and you had an injunction that prevented a competitor from selling toilets or bathrooms it would be more to scale...


I think an injunction preventing the offender from selling toilets that have that tiny robot installed would be to scale, not the bathroom. And the injunction would still be appropriate if the appeals court reverses the jury's verdict that the toilet tank infringed too.

But if the offender removes the little robot, and puts a well trained live tiny monkey in there to perform the same task, can he continue to install and use such toilet? That is to assume the whole idea is kept secret from animal rights groups


----------



## Greg Bimson

And some of us are simply trying to point out that in a patent infringement suit, the longer the infringement case is ongoing, the more likely a higher dollar figure will be reached.

Let's face it. There aren't too many patent infringement suits that get past the enforceable injunction phase. It is already past that stage. So one can say, the extreme fight that DISH/SATS is carrying on could end up with an extreme settlement at the end of the tunnel.

I have stated the most likely scenario is to have a licensing agreement in place. However, the next likely scenario is DVR shutdowns of some kind.

For DISH/SATS, we are talking a wing and a prayer to get everything accomplished. And that would still leave them out around $150 million.


----------



## Greg Bimson

jacmyoung said:


> And you have not proven upon the briefing by the district court the appeals court would easily accept such verdict without jury's input. So why can't you simply wait till the outcome of the trial on this issue?


Slow down...

The Court of Appeals themselves, "we could uphold the judgment on the basis of the doctrine of equivalents...

" The parties, however, have not briefed that issue in any detail, and we therefore do not address it."

So what exactly makes you think the District Court cannot decide what the Court of Appeals said they could have decided, given the right information?


----------



## James Long

Curtis0620 said:


> I just pointed out the other extreme since you guys are stuck at the complete opposite extreme (Cancel Injunction).
> 
> The final result will be somewhere in the middle. DVR's will still operate but DISH will pay a licensing fee to TiVo.


It think in general we agree ... DVRs will remain operational and Tivo will get a boatload of money ... from a company that isn't going broke. (It isn't an issue of DISH's inability to pay ... it is a case of their desire NOT to pay licensing on something they believe does not infringe.)

I'm happy with the injunction ... as long as it doesn't turn off non-infringing DVRs.


----------



## HobbyTalk

Since it seems everyone is saying what they think.... I think that E* will pay for past infrigment but will not license the TiVo patent because it will be found they no longer infringe.


----------



## scooper

HobbyTalk said:


> Since it seems everyone is saying what they think.... I think that E* will pay for past infrigment but will not license the TiVo patent because it will be found they no longer infringe.


Ditto. At worst, I think they would license. But I don't look for them to do anything out in public until they have to.

And that should be tivo


----------



## jacmyoung

Greg Bimson said:


> Slow down...


Why? I am sittig down and waiting for the trial to unfold so I can find out if I am right or wrong. Can't be any slower than that.

And from where I am sitting, I see the most likely scenario that DISH will pay the enhenced damages (more than the current amount) but not after another fight, and no DVRs will be turned off for a long time and eventually Tivo will give up because they'd rather use the money DISH pays for purposes other than legal fees.

Of course other outcomes are also likely just that IMO this one has a higher chance.


----------



## Greg Bimson

So the people on the "DISH" side don't think a licensing agreement is the outcome, except for maybe James Long, and the people on the TiVo side think it will most definitely be a licensing agreement. That would be 781 posts later.


----------



## Richard King

Thanks for the recap, Greg.


----------



## scooper

Greg Bimson said:


> So the people on the "DISH" side don't think a licensing agreement is the outcome, except for maybe James Long, and the people on the TiVo side think it will most definitely be a licensing agreement. That would be 781 posts later.


I think Dish would license if they are FORCED too - but they are going to do everything they can NOT to first.


----------



## James Long

Greg Bimson said:


> So the people on the "DISH" side don't think a licensing agreement is the outcome, except for maybe James Long,


and don't forget that maybe! If DISH can get away with not licensing the future they will ... I expect they will (eventually) pay for the past and if the courts go the right way Tivo will get some small payment to get them to leave DISH alone in the future.

If the courts go against DISH then it could get expensive ... and there are several ways that DISH could lose (I'm not saying the odds are that they will lose). But DISH is not giving up. And we're watching.



> 781 posts later.


Not counting other threads.


----------



## jclewter79

TIVO better hope they can manage an agreement, because if not E* is gonna make sure the whole settlement for past infringment will be spent on appeals lawyers. And no, Charlie will not lisence unless absolutly required but, if that happens at least we will have a real reason for our DVR fees.


----------



## jacmyoung

Greg Bimson said:


> So the people on the "DISH" side don't think a licensing agreement is the outcome, except for maybe James Long, and the people on the TiVo side think it will most definitely be a licensing agreement. That would be 781 posts later.


Now hold on right there, I never got the impression you were predicting a licensing agreement rather DISH will turn off the DVRs, but if this is true, I don't mind compromising my position to something similar of yours, nothing like making for a happy family here.

As long as nobody gets the wrong idea


----------



## Greg Bimson

I think twice or thrice I've mentioned a licensing agreement is most likely. It's that next probable outcome upon which we all differ. Mine is that Dish Network and Echostar could have to follow the injunction, and they might turn subscribers' DVR functions off, if Mr. Ergen is feeling a little cantankerous.

Remember, it is the Echostar/Dish Network legal team that has a track record of going extra lengths to win a case, sometimes to the chagrin of the courts. From today's Skyreport.com:


> A lawsuit filed eight years ago against EchoStar by thousands of retail distributors was certified as a class-action complaint last week by a county district judge in Colorado, stated press reports.
> 
> According to those reports, the judge overseeing the case stated that the company demonstrated "a willingness and proclivity for drawing out legal proceedings as long as humanly possible and burying their opponents in paperwork and filings."
> 
> Retailers in the case alleged they are owed past-due commissions and fees.
> 
> The company had no comment on the reports.


We won't even go into the distants suit on this one, but there is a very distinct pattern.


----------



## Equus911

Dish certainly isn't the only company to do that. Unfortunately, our court system makes it possible for companies that have money to use tactics like that in order to win a case...and from a business and stockholder point of view - who could expect them to do anything less?

I don't fault Dish for doing everything they can (legally) to win. That's how the big boys do business.


----------



## Richard King

The reason that Dish/Echostar HAS to get through this without a licensing fee attached to the settlement is that, I suspect, Echostar would like to sell their product (DVR's) to people other then Dish. If there is a licensing fee attached to the boxes they will be at a competitive disadvantage to Tivo in the markets they would like to go after.


----------



## Greg Bimson

Richard King said:


> The reason that Dish/Echostar HAS to get through this without a licensing fee attached to the settlement is that, I suspect, Echostar would like to sell their product (DVR's) to people other then Dish. If there is a licensing fee attached to the boxes they will be at a competitive disadvantage to Tivo in the markets they would like to go after.


But if this is the case, I suspect there will be an issue.

It would be like the irresistible force and immovable object paradox. Neither side will back down until forced to. The moment one side does, it would be complete victory. And it is more than likely the side that will be forced to stop sales and services of certain products that would have to back down.

The problem with DISH/SATS carrying this to the extreme in order to get the case to go their way is what exactly happens if the ruling goes against them. It is what I've been trying to point out from almost the first post.

One cannot say I will fight and fight and fight until I cannot fight anymore, because that gives a clear advantage to the opponent. DISH/SATS does have a chance at winning this. It just isn't as large as some make it out to be.


----------



## Herdfan

Greg Bimson said:


> The problem with DISH/SATS carrying this to the extreme in order to get the case to go their way is what exactly happens if the ruling goes against them. It is what I've been trying to point out from almost the first post.
> 
> One cannot say I will fight and fight and fight until I cannot fight anymore, because that gives a clear advantage to the opponent. DISH/SATS does have a chance at winning this. It just isn't as large as some make it out to be.


You should never fight to the end with someone who has nothing to lose. DISH has a lot to lose and TiVo everything to gain.


----------



## TBoneit

Richard King said:


> The reason that Dish/Echostar HAS to get through this without a licensing fee attached to the settlement is that, I suspect, Echostar would like to sell their product (DVR's) to people other then Dish. If there is a licensing fee attached to the boxes they will be at a competitive disadvantage to Tivo in the markets they would like to go after.


Why would Dish want to sell a standalone DVR which seems to be what you are saying. That market is small and shrinking. Tivo Standalone sales of the series three are low.

Cable and DirecTV would never buy from the competition.



Herdfan said:


> You should never fight to the end with someone who has nothing to lose. DISH has a lot to lose and TiVo everything to gain.


However one of the reasons Tivo sales are low is the monthly fee is large IMHO.
This opens the door for Charlie to fight dirty. Design a Standalone Dual tuner DVR that is as good as Tivo's and that is designed from the ground up to ensure non infringement. Run a huge national campaign offering it for $99 or $199 with no monthly fee and see if Tivo likes that. If it has the same easy interface as the VIP 622/722 series they'd sell pretty good.

Design it with a Satellite input so that if/when the buyer wants more than OTA or Cable offers with a cable card then all that is needed is to sub to E* and the installer brings the dish and access card and it could actually turn out to be a good product. Support costs for guide data over Internet could be low.

If it is sold by the seperate hardware company would any previous infringment court decisions carry over?

Could something like this be the reason for the E* split? Who knows.

So Tivo has a large loss of new business and old business. Why pay their monthly when a alternative from a large well established company has no monthly. Tivo value drops, Poison pill or not, then what?


----------



## Curtis52

TBoneit said:


> Why would Dish want to sell a standalone DVR which seems to be what you are saying. That market is small and shrinking. Tivo Standalone sales of the series three are low.


"Echostar -- the parent company of Dish Network -- announced today that it would enter the standalone DVR market, leveraging the experience it gained through the development of its Dish Network DVRs. Standalone DVR products will be sold under the Sling brand.

The [Echostar] Sling TR-50 DVR is a dual-tuner HDTV DVR that will support OTA SD and HD channels. Recording capacity is 30 HD hours and 200 SD hours with a 250Gb hard drive. It will have RF, composite, s-video, component, and HDMI outputs. It will also have ethernet connectivity, a phone jack for on-screen caller ID, and USB ports. USB external drive expansion is supported out of the box. The interface is very similar to the Dish Network 622/722 DVRs with a program guide, season passes, and search.

At launch, the TR-50 will receive free guide data from PBS and CBS stations 8-VSB datacast. Guide data may also be made available via ethernet at a future date, but use of ethernet is optional. By year's end, it will support MPEG-4 IPTV with Dish Network's pay VOD service.

The product will be available in September with no monthly fees. No official pricing information yet."


----------



## Greg Bimson

TBoneit said:


> If it is sold by the seperate hardware company would any previous infringment court decisions carry over?
> 
> Could something like this be the reason for the E* split? Who knows.
> 
> So Tivo has a large loss of new business and old business. Why pay their monthly when a alternative from a large well established company has no monthly. Tivo value drops, Poison pill or not, then what?


The judgment affects both companies.

However, you've hit the nail on the head. It is exactly why TiVo is suing. I mean, take a look at this...


> A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> 
> tuning said TV signals to a specific program;
> 
> providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;
> 
> providing a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;
> 
> storing said video and audio components on a storage device;
> 
> providing at least one Output Section, wherein said Output Section extracts said video and audio components from said storage device;
> 
> wherein said Output Section assembles said video and audio components into an MPEG stream;
> 
> wherein said Output Section sends said MPEG stream to a decoder;
> 
> wherein said decoder converts said MPEG stream into TV output signals;
> 
> wherein said decoder delivers said TV output signals to a TV receiver; and
> 
> accepting control commands from a user, wherein said control commands are sent through the system and affect the flow of said MPEG stream.


This could be rather difficult to avoid.

I don't know if the new software parses the video and audio and then stores it. But if not, then the new software is still allowing the exact function described above. And the above function is claim 1 from the Time Warp patent.


----------



## spear61

Tivo will fight this to the death and they will die if they don't prevail. Tivo exists for one reason- potential income from patent litigation. It's a patent litigation company and little else. Look at their financial reports for normal business activities- Heavy loses every year with no end in sight. Competitors moving to new techologies. It's similar to what happened when Betamex and HD DVD were smashed by alternate technologies They have no choice - they must win or die


----------



## jacmyoung

Greg Bimson said:


> The judgment affects both companies.
> 
> However, you've hit the nail on the head. It is exactly why TiVo is suing. I mean, take a look at this...This could be rather difficult to avoid.
> 
> I don't know if the new software parses the video and audio and then stores it. But if not, then the new software is still allowing the exact function described above. And the above function is claim 1 from the Time Warp patent.


When I read the appeals court ruling, it appeared to me at least from the standpoint of literal infringement, Tivo must satisfy all "limitations" described in its patent for the infringement claim to stick. As a result, any one limitation DISH can prove to be not in satisfaction, the claim can not stand. DISH only needed to prove just one of the 10 items not in satisfaction to defeat the hardware literal infringement claim which they did.

While the appeals court allowed the briefing on the doctrine of equivalents to further pursue the hardware claim if Tivo wishes to do so, it is in my view a very difficult task since motion for a summary judgment by law is a very risky one and can take the path of a long drawn out appeals and such, and the likelihood of Tivo in need of a new trial to address such issue is very high. But Tivo can request that if it insists and if it is willing to go down such path.

In that case I think the damages can be assessed and enforced, but the injunction will be stayed while the hardware claim on the equivalents continues.

On the software issue, the jury did found the 5xx DVRs literally infringed, and the "Broadcom" DVRs (I assume the non 5xxs) infringed on equivalents. And both software claims were upheld by the appeals court.

From that angle, the equivalents issue was in fact addressed on the software claims, which will make DISH's job much more difficult because if I understand it correctly (I may very well be wrong) to prove infringement on equivalents only some of the patent limitations need to be satisfied, not all of them.

Therefore the DISH new software must not touch all the 10 limitations in the Tivo software patent. It can be done IMO just not an easy thing. Which is why I think DISH in its new software patent application painstakingly described all total of 24 limitations, compared to Tivo's 10. And interestingly any one of the 24 that may have touched on the Tivo's limitation is explained in much greater detail to make the argument clear.

If DISH can provide the new software code as described in the patent application during the contempt hearing, it will without a doubt convince the judge that the new software is "more than colorably different" than the old software. As a result the judge will have to order a new hearing to address if the new software is still infringing or not. Again the trial will drag out longer, whether it is in terms of a summary judgment on the hardware claim, or the infringement issue on the new software.

And like the hardware issue, if the judge must order a new hearing on the new software infringement issue, the damages can be assessed and enforced, but the injunction should be stayed while things are sorted out.


----------



## Curtis52

jacmyoung said:


> When I read the appeals court ruling, it appeared to me at least from the standpoint of literal infringement, Tivo must satisfy all "limitations" described in its patent for the infringement claim to stick. As a result, any one limitation DISH can prove to be not in satisfaction, the claim can not stand. DISH only needed to prove just one of the 10 items not in satisfaction to defeat the hardware literal infringement claim which they did.


No. There are 61 claims in TiVo's patent. They are all numbered. Infringing any one of them is infringement. Dish infringed claim 32.


----------



## jacmyoung

In that claim 32 (or 1) there are 10 limitations, all must be satisfied to prove literal infringement.


----------



## jacmyoung

spear61 said:


> Tivo will fight this to the death and they will die if they don't prevail. Tivo exists for one reason- potential income from patent litigation. It's a patent litigation company and little else. Look at their financial reports for normal business activities- Heavy loses every year with no end in sight. Competitors moving to new techologies. It's similar to what happened when Betamex and HD DVD were smashed by alternate technologies They have no choice - they must win or die


In a sense you can blame Tivo's difficulties on DISH. Tivo first offered to work with DISH to develop DVRs, and gave DISH its own code. DISH later decided to work with Microsoft instead but we all knew how the Dishplayers and Ultimate brand of DVR's went. Microsoft simply was not responsive in fixing the bugs reoprted by the Dishplayer users so DISH decided to take the matter into its own hands.

DISH did so by borrowing some of the Tivo's code without paying Tivo. Since Tivo never had a solid platform to market its own DVRs, it could not compete due to high hardware and high monthly costs.

The lawsuit did serve to get DirecTV and cable to sign agreements with Tivo, but it also made those companies very hesitant to commit to full partnership with Tivo.

I agree that the situation is critical for Tivo to win the case, meaning to get DISH to sign a license agreement. DirecTV's door is shut, and cable's door has yet to open. Meanwhile every passing day allows hardware and software manufactures/providers to come up with new products to get around the Tivo patent and in the case of DISH doing so with the goal of futher undermining Tivo's standalone DVR's, by offering the above-mentioned TR-50 at no monthly cost.

The TR-50 was developed around and after the infringement verdicts, so one can assume DISH made every effort to make sure it does not infringe. In a way I think the TR-50 can be used as a bargaining chip with Tivo, or even a threat, look if you don't leave us alone, we will flood the market with this cheap TR-50 and make you regret your decision.

The TR-50 is to go on sale later this year, just about the same time this case should draw to some conclusion. The timing is quite right.


----------



## TBoneit

I had forgotten about the TR-50. It could well become a bargaining chip as mentioned above. 

Dish could I suppose also design and sell receiver motherboards with connectors so others could add DVR functionality and sell them under the Philips or JVC or whatever brand to function with Dishnetwork. If I were a manufacturer that would interest me. Sell the hardware at cost and get the monthly fee for however long. This of course would be more or what Tivo did in the past. My Tivo standalone is a Philips.


----------



## Curtis52

TBoneit said:


> I had forgotten about the TR-50. It could well become a bargaining chip as mentioned above.


I wonder how many technologically aware people don't use cable or satellite for their TV.


----------



## spear61

I think Tivo made a big mistake many years ago. As a little guy competing with big companies, I made a very good living from a seriesof patents. I still remember the business advice I received from the patent attorneys. "Don't get greedy. If you take a small royalty, the competition will be happy to pay". Tivo could have gotten one dollar a box ( inflation adjusted) per year and everyone would have been happy. They would have made a pile of money over the life of the patent. Instead, they got piggy and got beat up badly.


----------



## Greg Bimson

spear61 said:


> I think Tivo made a big mistake many years ago. As a little guy competing with big companies, I made a very good living from a seriesof patents. I still remember the business advice I received from the patent attorneys. "Don't get greedy. If you take a small royalty, the competition will be happy to pay". Tivo could have gotten one dollar a box ( inflation adjusted) per year and everyone would have been happy. They would have made a pile of money over the life of the patent. Instead, they got piggy and got beat up badly.


I do believe that is what TiVo is asking for. DISH/SATS has balked.


----------



## Curtis52

spear61 said:


> I think Tivo made a big mistake many years ago. As a little guy competing with big companies, I made a very good living from a seriesof patents. I still remember the business advice I received from the patent attorneys. "Don't get greedy. If you take a small royalty, the competition will be happy to pay". Tivo could have gotten one dollar a box ( inflation adjusted) per year and everyone would have been happy. They would have made a pile of money over the life of the patent. Instead, they got piggy and got beat up badly.


DirecTV pays TiVo 80 cents per box. That doesn't sound greedy to me.


----------



## Herdfan

Curtis52 said:


> DirecTV pays TiVo 80 cents per box.


Actually, I think that is per account. So an account with 6 boxes (which I had at one time) would still only cost DirecTV 80 cents.


----------



## spear61

Whatever it is, somewhere they are charging too much. My wife loved her Tivo, and tells me it was much easier to use than our dish DVR ( that's my customer survey).

If you have a product the customer likes, you have to ask why they are losing market share. I'd guess it's pricing.

From the last Tivo 10K:

"We face competition from companies such as Microsoft, Gemstar, OpenTV, NDS, DIRECTV, NDS, Echostar, Pace, Digeo, Motorola, Scientific Atlanta, Gotuit, and 2Wire, which have created competing digital video recording technologies. *Such companies may offer more economically attractive licensing agreements to service providers and manufacturers of DVRs.*


----------



## Tom Robertson

Curtis52 said:


> DirecTV pays TiVo 80 cents per box. That doesn't sound greedy to me.





Herdfan said:


> Actually, I think that is per account. So an account with 6 boxes (which I had at one time) would still only cost DirecTV 80 cents.


And it did not entitle DIRECTV accounts to the full feature set of the TiVo unfortunately. Perhaps that is where TiVo might have been greedy?

Cheers,
Tom


----------



## Curtis52

spear61 said:


> *Such companies may offer more economically attractive licensing agreements to service providers and manufacturers of DVRs.*


Then again, they may not. Companies are required to list risks in the reports.


----------



## Curtis52

Herdfan said:


> Actually, I think that is per account. So an account with 6 boxes (which I had at one time) would still only cost DirecTV 80 cents.





Tom Robertson said:


> And it did not entitle DIRECTV accounts to the full feature set of the TiVo unfortunately. Perhaps that is where TiVo might have been greedy?


"First, the extra features of the TiVo never materialized. DirecTV didn't permit TiVo to enable the features, supposedly because they didn't want to incur the wrath of broadcasters worried about their near-perfect digital transmissions being pirated. So while the standalone TiVo users got to ditch their phone lines, watch programs recorded on any TiVo, and transfer to laptops and iPods, we got...nothing. Not a single new feature. Oh, we did get a software update that did make it a little faster, and group programs into folders, but that was it. The kicker? The software INCLUDED the features of the standalones - just not enabled. But ve have vays... "

link


----------



## jacmyoung

Curtis52 said:


> "First, the extra features of the TiVo never materialized. DirecTV didn't permit TiVo to enable the features, supposedly because they didn't want to incur the wrath of broadcasters worried about their near-perfect digital transmissions being pirated. So while the standalone TiVo users got to ditch their phone lines, watch programs recorded on any TiVo, and transfer to laptops and iPods, we got...nothing. Not a single new feature. Oh, we did get a software update that did make it a little faster, and group programs into folders, but that was it. The kicker? The software INCLUDED the features of the standalones - just not enabled. But ve have vays... "
> 
> link


The flip side of it is D* did not care for Tivo to begin with, they just wanted to keep Tivo at bay until they got their own DVRs in order. The above just was another reason why D* didn't care for some of the features of Tivo. Did not seem to hurt their sub growth.

Tivo's diehearts of course swear on those niche features, maybe not knowing by doing so making Tivo less appealing to the broadcasters and the studios. Another reason Tivo can't grow or have a foot in some major agreements?


----------



## Greg Bimson

jacmyoung said:


> The flip side of it is D* did not care for Tivo to begin with, they just wanted to keep Tivo at bay until they got their own DVRs in order. The above just was another reason why D* didn't care for some of the features of Tivo. Did not seem to hurt their sub growth.
> 
> Tivo's diehearts of course swear on those niche features, maybe not knowing by doing so making Tivo less appealing to the broadcasters and the studios. Another reason Tivo can't grow or have a foot in some major agreements?


Until NewsCorp was the majority-by-proxy shareholder of DirecTV, DirecTV's CEO sat on TiVo's Board of Directors. The relationship was fine until the company that purchased DirecTV also had a subsidiary that made DVR's.

One must remember that TiVo had to start from scratch, writing software and building boxes to start the "TiVolution". The entire problem isn't that they needed major agreements, but that they then marketed these boxes to the end user. TiVo needed to act more like a Scientific Atlanta than an AOL. So of course, what they would have needed were agreements with the major multichannel players. They received one from DirecTV, but not from Dish Network.

And it isn't like the cablers are building their own DVR's. Those have been coming from Motorola and Scientifc Atlanta, among others. So TiVo should have become more like those companies, and less like AOL, where having individual customers was key.


----------



## TBoneit

Curtis52 said:


> "First, the extra features of the TiVo never materialized. DirecTV didn't permit TiVo to enable the features, supposedly because they didn't want to incur the wrath of broadcasters worried about their near-perfect digital transmissions being pirated. So while the standalone TiVo users got to ditch their phone lines, watch programs recorded on any TiVo, and transfer to laptops and iPods, we got...nothing. Not a single new feature. Oh, we did get a software update that did make it a little faster, and group programs into folders, but that was it. The kicker? The software INCLUDED the features of the standalones - just not enabled. But ve have vays... "
> 
> link


Or it could be the D* bean counters didn't see the need to pay for those features.

Or semi conspiracy theory, it could be that D* didn't want their DirecTivo users getting used to features they did not plan to implement in the boxes they were planning to design. Then they could add those features and look like heroes later.

Or there could be a third reason that hasn't occured to me yet or a combination of the above. Or maybe the E* vs Tivo lawsuit has them being cautious?


----------



## Richard King

I *suspect *that the features included in the Directivo boxes were what was negotiated between Tivo and Directv. If the other features were activated Directv would *probably *have to pay Tivo more $$$ each month.


----------



## gully_foyle

Tom Robertson said:


> And it did not entitle DIRECTV accounts to the full feature set of the TiVo unfortunately. Perhaps that is where TiVo might have been greedy?
> 
> Cheers,
> Tom


IIRC, it was the full set at the time. I think that Murdoch may have had something to do with the limitations on the D*TiVo box versus the standalone boxes.

If you want evidence TiVo is greedy, I'd be more inclined to look at the $17/month/box fee on the OTA box.


----------



## Curtis52

DirecTV has been dragging their feet on adding remote web program scheduling. They announced it a year ago. Still nothing.


----------



## jacmyoung

Curtis52 said:


> DirecTV has been dragging their feet on adding remote web program scheduling. They announced it a year ago. Still nothing.


Have been using it for the last two months.


----------



## jacmyoung

Curtis52 said:


> I wonder how many technologically aware people don't use cable or satellite for their TV.


It was reported that due to the digital transition, more OTA-only homes will consider pay-TV this year. Dish's no monthly fee DVR will be a hit if they market it right, the OTA folks will be all over the TR-50. Not to mention many "technically aware" people who now have cable and sat DVRs or even Tivo boxes can see the benefit of a free DVR service to pick up OTA for some of their additional TV sets at home, while still using paid DVR services for their main TVs.

The stength of the low cost TR-40 and TR-50 is they become the loss leader for those households to upgrade to additional pay-TV service and that service will likely be DISH more so than any other service.


----------



## Curtis52

jacmyoung said:


> Have been using it for the last two months.


The discussion was about DirecTiVo features. Try to follow along.


----------



## jacmyoung

Curtis52 said:


> The discussion was about DirecTiVo features. Try to follow along.


Who cares? The discussion is about how Tivo/DirecTivo is becoming increasingly irrelavent for many DVR users, because other DVR services provide similar functions, with the strength of their own content to back them up, unlike Tivo.

Tivo is at an disadvantage, they must find a host to attach their service to in order to have any value. They have so far failed in that attempt, as a result their only hope is that patent. But for that to work in the long run they must be confident no one can work around that 10 plus-year old patent.

Even if they manage to do so, by the time dust settles there will be only a few years left with that patent, they will only be able to breadth a few more years before their eventual death, unless they do something other than lawsuits.


----------



## spear61

jacmyoung said:


> Who cares? The discussion is about how Tivo/DirecTivo is becoming increasingly irrelavent for many DVR users, because other DVR services provide similar functions, with the strength of their own content to back them up, unlike Tivo.
> 
> Tivo is at an disadvantage, they must find a host to attach their service to in order to have any value. They have so far failed in that attempt, as a result their only hope is that patent. But for that to work in the long run they must be confident no one can work around that 10 plus-year old patent.
> 
> Even if they manage to do so, by the time dust settles there will be only a few years left with that patent, they will only be able to breadth a few more years before their eventual death, unless they do something other than lawsuits.


You got it right. From the TIVO annual report

"We believe the decrease in year-over-year TiVo-Owned subscription net additions was a result of increased churn due partly to our larger subscription base and due partly from increased competition from DVRs distributed by cable and satellite providers, including DIRECTV's non-TiVo products, and *the failure of TiVo to have a competitively priced mass market high definition DVR*.


----------



## James Long

Curtis52 said:


> The discussion was about DirecTiVo features. Try to follow along.


Why in the world would you be having a discussion about DirecTiVo features in a DISH Network forum? Bored? Looking for a fight?

:backtotop Tivo vs Echostar ... and the lawsuit


----------



## Curtis52

Tom Robertson said:


> And it did not entitle DIRECTV accounts to the full feature set of the TiVo unfortunately. Perhaps that is where TiVo might have been greedy?
> 
> Cheers,
> Tom


I'm sorry. I can't talk about it.


----------



## James Long

Curtis52 said:


> I'm sorry. I can't talk about it.


You already answered that question anyways (10 days ago, about 32 hours after it was asked).


Curtis52 said:


> Tom Robertson said:
> 
> 
> 
> And it did not entitle DIRECTV accounts to the full feature set of the TiVo unfortunately. Perhaps that is where TiVo might have been greedy?
> 
> 
> 
> "First, the extra features of the TiVo never materialized. DirecTV didn't permit TiVo to enable the features, supposedly because they didn't want to incur the wrath of broadcasters worried about their near-perfect digital transmissions being pirated. So while the standalone TiVo users got to ditch their phone lines, watch programs recorded on any TiVo, and transfer to laptops and iPods, we got...nothing. Not a single new feature. Oh, we did get a software update that did make it a little faster, and group programs into folders, but that was it. The kicker? The software INCLUDED the features of the standalones - just not enabled. But ve have vays... "
> 
> link
Click to expand...

No need to answer it again. No need to drag up the question again either.


----------



## Curtis52

http://online.barrons.com/article/SB121081057432193629.html?mod=googlenews_barrons
...
We have believed that there would be some day of reckoning on the part of Dish despite its efforts to push the date out; that date may be close at hand. Our recent checks with patent attorneys familiar with the process suggest that the judge's hands are likely to be tied on the issue of enforcing the injunction that was confirmed by the appeals court on
Jan. 31. Specifically, we expect the judge to far prefer erring on the side of conservatism and turn off all the Dish DVR models specified in the injunction, rather than risk allowing some infringing DVRs to possibly remain on while the question of the Dish work-around is resolved.

While we have no way of evaluating Dish's design-around of course, the point may be moot for purposes of the enforcement of the injunction, which could force Dish to at least offer TiVo something to keep its DVRs working, even temporarily.


----------



## jacmyoung

Curtis52 said:


> ... which could force Dish to at least offer TiVo something to keep its DVRs working, even temporarily.


How does that work? According to some it is not even up to Tivo anymore, when the judge says to turn off DVRs, DISH should have done so some time ago.

I am not against a settlement at all, but let's first figure out if any settlement will be able to prevent the shut off of the DVR functions. According to the "expert" speculation above, it is possible so what do you think?

My issue with the above speculation is they did not consider the appeals court at all, because even if the judge refuses to hear the DISH's new software claim, DISH can still appeal, and the appeals court can hear it.


----------



## Curtis52

jacmyoung said:


> My issue with the above speculation is they did not consider the appeals court at all, because even if the judge refuses to hear the DISH's new software claim, DISH can still appeal, and the appeals court can hear it.


It's what we've been telling you for weeks. No stay pending appeal. moot moot moot


----------



## jacmyoung

Curtis52 said:


> It's what we've been telling you for weeks. No stay pending appeal. moot moot moot


You did not even understand the question, no one is talking about stay of injunction, rather contempt of court.

The above speculation basically said the judge would likely find DISH in contempt rather stay the injunction while trying to hear the new software claim. A speculation nevertheless. And in that case of course DISH can appeal.

My question to you is what was your notion about this was the end of the road for DISH, no matter what they do or what Tivo does, DISH is finished, when the same analyst said now DISH may settle with Tivo to keep the DVRs alive, even if just "temporalily."

Can you explain that?


----------



## Greg Bimson

jacmyoung said:


> You did not even understand the question, no one is talking about stay of injunction, rather contempt of court.
> 
> The above speculation basically said the judge would likely find DISH in contempt rather stay the injunction while trying to hear the new software claim. A speculation nevertheless. And in that case of course DISH can appeal.


Once again, you are missing the boat. Why should the injunction be stayed now that there is a possible workaround? An injunction is not modified until after it has been proven that it should be.

This is the point some of us were trying to make all along. The patent attorneys familiar with the process believe that the judge will have no other choice than to shut down offending DVR's, unless there is a settlement.

Why would TiVo even remotely consider a temporary settlement? A permanent one should have been struck before the injunction was in full force and effect.

Some people believe an injunction is simply a piece of paper with no weight behind it, and can be changed at any time.

Nope. It takes a lot of work to change an injunction, and it normally carries full force and effect until it is proven that it needs to be changed.


jacmyoung said:


> My question to you is what was your notion about this was the end of the road for DISH, no matter what they do or what Tivo does, DISH is finished, when the same analyst said now DISH may settle with Tivo to keep the DVRs alive, even if just "temporalily."


Just like me, Curtis believes that Dish Network and Echostar will have to pay TiVo through the nose to come to a licensing agreement. That is the "end of the road".


----------



## jacmyoung

Greg Bimson said:


> ... Curtis believes that Dish Network and Echostar will have to pay TiVo through the nose to come to a licensing agreement. That is the "end of the road".


And based on what past history do you even believe for a minute Charlie will "pay through the nose", ever? He'd rather shut off his DVRs, like he did to the distants, and his VOOM...Will that be the end of the road for him? You tell me.

The only time he will accept some settlement is if the settlement makes sense to him.

If Tivo insists Charlie pay through the nose, Tivo will end up with just about $200 million or less, nothing more. Tivo will still have no meaningful agreement with anyone. Have you read how badly the cable/Tivo service boxes trials had turned out to be? Have you not read what Tivo said in its own annual report the prospect of any DirecTivo in the future?

I guess you can simply pick and choose what those analysts were saying, that when they said DISH may be forced to settle with Tivo even for a temporary deal to let the DVR stay alive, it did not fit your own wish. The way I read that speculation is the same general thinking behind it, that it is Tivo who wants to keep DISH's DVR alive, only if Tivo can get DISH to be willing to sit down and talk.

What they are saying is the prospect of the judge refusing to stay the injunction may finally force DISH to do so.

What I am saying is I am not even thinking the judge to stay the injunction at this time, assume he will find DISH in contempt (if Tivo asks for that), DISH can still appeal such ruling, whereas Curtis did not understand me, he said DISH has no right to appeal. In that sense he was wrong.

Whether there will be a settlement before the contempt hearing is still questionable, and even whether the judge will find DISH in contempt while refusing to hear DISH's new software claim is also questionable.

What is not a question is who has more to lose if a settlement is not reached, the analysts seemed to be saying Tivo has a lot to lose too if DISH refuses to settle. Which is why they think Tivo may even allow a "temporary" settlement.


----------



## Curtis52

jacmyoung said:


> Curtis did not understand me, he said DISH has no right to appeal. In that sense he was wrong.


Yet another misstatement. Is there no end? I think we're up to 70%. The analyst said there probably won't be a stay while Dish tries to prove the new software doesn't infringe. He agrees with me. Nowhere, not once, have I ever said that Dish has no right to appeal. Sheesh.


----------



## Greg Bimson

jacmyoung said:


> And based on what past history do you even believe for a minute Charlie will "pay through the nose", ever? He'd rather shut off his DVRs, like he did to the distants, and his VOOM...Will that be the end of the road for him? You tell me.


I think you are giving Mr. Ergen too much credit.

First, "like he did to the distants" wasn't Mr. Ergen's choice. So you realize, even though the injunction went in full force and effect on 1 December, 2006, the appeal still went to the Supreme Court and was denied. There is also that issue of NPS, where a ruling could come down any day now.

Second, Mr. Ergen and company did have VOOM over a barrel, based on the terms of the contract. However, it will be interesting to see this quarter's numbers to see if there was any effect.

Third, Mr. Ergen and company immediately paid DirecTV $600 million upon breakup of the merger agreement back in 2002. It is widely believed that Echostar could have sued back then to recover some of the monies, and litigated out a lower settlement number. So it is definitely possible and within Mr. Ergen's genetic makeup to actually settle.


jacmyoung said:


> What I am saying is I am not even thinking the judge to stay the injunction at this time, assume he will find DISH in contempt (if Tivo asks for that), DISH can still appeal such ruling, whereas Curtis did not understand me, he said DISH has no right to appeal. In that sense he was wrong.


You are still missing the boat.

Judge Folsom: You haven't turned off the DVR's in the injunction?
DISH/SATS: We've updated the software so they are no longer infringing.
TiVo: We don't know if the software is no longer infringing.
Judge Folsom: I will schedule a hearing to see if you are no longer infringing, but the DVR's will need to have their DVR functions shut down until we sort this out. I also find you in contempt of court because you have not shut down the listed DVR's.

Then you are stating that is appealable. Sure, anything is appealable. However, where does this appeal go? Back to the same court that allowed the injunction to stand and removed the stay that was already on it, forcing the injunction to become in full force and effect. I truly doubt the Court of Appeals would do anything, other than to rubber stamp what they've already rubber stamped.


jacmyoung said:


> What is not a question is who has more to lose if a settlement is not reached, the analysts seemed to be saying Tivo has a lot to lose too if DISH refuses to settle.


That's what I've been saying all along. However, the big bat at the playground belongs to TiVo. How many customers will DISH shut down if they don't get their way? How many customers will defect if DISH refuses to settle? If DISH plays that game, I'll bet you the shareholders will start a revolt. And, yes, it can happen.


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## jacmyoung

Curtis52 said:


> Yet another misstatement. Is there no end? I think we're up to 70%. The analyst said there probably won't be a stay while Dish tries to prove the new software doesn't infringe. He agrees with me. Nowhere, not once, have I ever said that Dish has no right to appeal. Sheesh.


What I was saying is even if he was right that the judge will not stay the injunction, meaning finding DISH in contempt, DISH can still appeal, so why were you trying to dispute that?

Now the analyst apparently believed also that it will be in Tivo's best interest to settle, so much so he even thought Tivo would allow a "temporary settlement" just to get Charlie to begin talking. Did you agree with that, or did you just want to pick and choose what to agree?


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## jacmyoung

Greg Bimson said:


> ... I also find you in contempt of court because you have not shut down the listed DVR's.


Yes that is when the appeal can happen.



> Then you are stating that is appealable. Sure, anything is appealable. However, where does this appeal go? Back to the same court that allowed the injunction to stand and removed the stay that was already on it, forcing the injunction to become in full force and effect. I truly doubt the Court of Appeals would do anything, other than to rubber stamp what they've already rubber stamped.That's what I've been saying all along.


That is your opinion though. What I am saying is DISH has a good case to convince the appeals court that if they can find its new software "more than colorably different" (which is not difficult to do IMHO) they should stay the injunction while the new software claim is sorted out. It has been done before.



> However, the big bat at the playground belongs to TiVo. How many customers will DISH shut down if they don't get their way? How many customers will defect if DISH refuses to settle? If DISH plays that game, I'll bet you the shareholders will start a revolt. And, yes, it can happen.


Here you suddenly no longer read what the analyst was saying (again pick and choose what you like to read), what the analyst was saying is Tivo may even allow a "temporary settlement" to allow DISH DVRs to operate, if that could entice Charlie to talk. Did not sound like the analyst believes Tivo is going to make sure Charlie pays through the nose, did it?


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## Curtis52

jacmyoung said:


> What I was saying is even if he was right that the judge will not stay the injunction, meaning finding DISH in contempt, DISH can still appeal, so why were you trying to dispute that?


OK. I'm going to type slower so that you can understand (maybe). Dish can appeal anything and everything. I have never said otherwise. I don't appreciate falsehoods. The analyst said that the DVRs are likely to get turned off while any appeals go on.

"We have believed that there would be some day of reckoning on the part of Dish despite its efforts to push the date out; that date may be close at hand. Our recent checks with patent attorneys familiar with the process suggest that the judge's hands are likely to be tied on the issue of enforcing the injunction that was confirmed by the appeals court on Jan. 31. Specifically, we expect the judge to far prefer erring on the side of conservatism and *turn off all the Dish DVR models* specified in the injunction, rather than risk allowing some infringing DVRs to possibly remain on *while the question of the Dish work-around is resolved*."


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## jacmyoung

Curtis52 said:


> OK. I'm going to type slower so that you can understand (maybe). Dish can appeal anything and everything. I have never said otherwise. I don't appreciate falsehoods. The analyst said that the DVRs are likely to get turned off while any appeals go on.
> 
> "We have believed that there would be some day of reckoning on the part of Dish despite its efforts to push the date out; that date may be close at hand. Our recent checks with patent attorneys familiar with the process suggest that the judge's hands are likely to be tied on the issue of enforcing the injunction that was confirmed by the appeals court on Jan. 31. Specifically, we expect the judge to far prefer erring on the side of conservatism and turn off all the Dish DVR models specified in the injunction, rather than risk allowing some infringing DVRs to possibly remain on *while the question of the Dish work-around is resolved*."


So what? I was simply saying even if he could be right that the judge will find DISH in contempt, meaning not allow a stay while trying to sort out the new software claim, DISH can still appeal. Why did you try to dispute my such statement?


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## Curtis52

jacmyoung said:


> So what? I was simply saying even if he could be right that the judge will find DISH in contempt, meaning not allow a stay while trying to sort out the new software claim, DISH can still appeal. Why did you try to dispute my such statement?


I'm sure that if you keep restating it enough times we'll eventually get the Gettysburg Address out of it.


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## jacmyoung

Curtis52 said:


> I'm sure that if you keep restating it enough times we'll eventually get the Gettysburg Address out of it.


I am sure if you simply tried to read what I was saying you would not have tried to dispute it in the first place.

I will give you one last chance, if the judge finds DISH in contempt (meaning refuses to stay the injunction while looking at the new software claim), can DISH appeal or not? Pretty simple yes or no question that does not need any lengthy quote to get you no where.


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## Curtis52

It's what we've been telling you for weeks. No stay pending appeal. moot moot moot


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## jacmyoung

Curtis52 said:


> It's what we've been telling you for weeks. No stay pending appeal. moot moot moot


I hope you understand you were not answering my question?

So one more time, if the judge will not allow a stay, meaning to find DISH in contempt, will DISH be able to appeal the contempt ruling or not?


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## inkahauts

Dish needs to buy Tivo and get this over with.... 

Of course, then the two most powerful DVR makers would be in the hands of the two best pay tv providers... and cable would be even more screwed... 

When was the "30 days" up? It seems like it should be next week, yes?


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## jacmyoung

inkahauts said:


> Dish needs to buy Tivo and get this over with....
> 
> ...


Not going to happen. DISH in its forward-looking statement to its investors made very clear that they will mount a "rigorous defense" and at the same time warned the possibility that some of their DVRs may be turned off.

One can call that a bluff or spin whatever one wants, I only see it at its face value, that DISH has so far kept its words on rigorous defense, no one can say they absolutely will never let any of their DVRs go dark.

I will have no problem if my 625 loses some service, as long as they replace it with something newer.

If DISH and Tivo settle, I am fine with it too, I have no ill feeling against anyone. Just don't believe Charlie is the kind of person that will try to keep some of his DVRs alive at all cost.

And I also continue to believe, based on the facts laid out as well as my interpretation of that analyst, it was Tivo who wanted to settle more so than DISH and continues so.


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## Greg Bimson

jacmyoung said:


> So one more time, if the judge will not allow a stay, meaning to find DISH in contempt, will DISH be able to appeal the contempt ruling or not?


I think I understand what you've been trying to say, but it is not what you think it is.

The judge does not have to allow a stay on an injunction that is in full force and effect. An injunction is issued to force a party to comply with some remedy. And in a very large majority of the time, they are not changed once in full force and effect, unless a settlement occurs. So, when you write:


jacmyoung said:


> if the judge finds DISH in contempt (meaning refuses to stay the injunction while looking at the new software claim), can DISH appeal or not?


Finding DISH in contempt simply means not following the court's order. In this case it would mean not following the order to shut down the DVR functions in certain receivers.

Looking at the new software claim has nothing to do with the current injunction, per se. This is what DISH/SATS is trying to say they can "fix". However, this would be the time where TiVo states they need discovery. It took two years from the time the paperwork was filed by TiVo to sue Echostar until the time it went to court. So let's imagine it takes TiVo a year to look at the new code.

During that year, do you honestly believe DISH/SATS gets the benefit of the doubt and receives a stay on the injunction, again, pending a review of the new software? Before a trial, the defendants are presumed innocent until proven guilty. This time, one is to take an argument from the guilty party that they are no longer guilty, and that the remedy to remove all DVR functionality should be delayed pending discovery on the new software?

It is exactly like I said before, this will not happen, as an injunction will never have any teeth to force a guilty party to do anything. Remember this?

We've changed our software so it no longer infringes.
Stay the injunction until proven the software no longer infringes.
The software still infringes, so the injunction is valid.

We've changed our software again so it no longer infringes.
Stay the injunction again until proven the software no longer infringes.
The software still infringes, so the injunction is valid.

We've changed our software for the third time so it no longer infringes.
Stay the injunction for the third time until proven the software no longer infringes.
The software still infringes, so the injunction is valid.

If an active injunction is stayed, removing the full force and effect because a change in software must be inspected if it violates a patent, then the injunction will never be enforcable if the guilty defendant always claims they have a workaround.

You've put too much stock on what can be done once an injunction is in full force and effect.


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## jacmyoung

Greg Bimson said:


> I think I understand what you've been trying to say, but it is not what you think it is...During that year, do you honestly believe DISH/SATS gets the benefit of the doubt and receives a stay on the injunction, again, pending a review of the new software? ...


That is what I believe yes. The only meaningful threat DISH will be under would be if they loses all appeals on the contempt of court ruling.

There have been ample examples where even if a judge refused to stay the injunction, the appeals court looked at the new evidence carefully before reaching a conclusion. In light of the fact as it stands, the hardware is not infringing, and only the old software did, DISH's new software claim is very crucial in such determination. It will be unreasonable to ignore DISH's evidence.

It is not necessary to go through the two-year discovery in order to stay the injunction, the law says if the new device can demonstrate it is more than colorably different, then a contempt ruling may not be appropriate, that the judge must arrange a new hearing on the new software infringement issue, or what you call discovery.

To determine colorable difference is a very short course, takes a few weeks max.


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## Greg Bimson

jacmyoung said:


> It is not necessary to go through the two-year discovery in order to stay the injunction, the law says if the new device can demonstrate it is more than colorably different, then a contempt ruling may not be appropriate, that the judge must arrange a new hearing on the new software infringement issue, or what you call discovery.
> 
> To determine colorable difference is a very short course, takes a few weeks max.


Agreed on the discovery, just pointing out that any delay in understanding if the new software infringes would be interpreted in TiVo's favor at this time, because DISH/SATS are the guilty parties.

However, you are now caught up on the "colorably different" issue. The order states to shut down the 501, 508, 510, 625, 721, 921 and 942. Unless DISH/SATS can get that part of the injunction rewritten (which in and of itself is difficult), as of 20 May those must have their DVR functions shut down.

Why is it both RIMM (Blackberry) and Vonage settled their cases before an injunction was issued? Because it gets much worse for the guilty parties if the injunction is in full force and effect.


jacmyoung said:


> There have been ample examples where even if a judge refused to stay the injunction, the appeals court looked at the new evidence carefully before reaching a conclusion. In light of the fact as it stands, the hardware is not infringing, and only the old software did, DISH's new software claim is very crucial in such determination. It will be unreasonable to ignore DISH's evidence.


New "evidence"? This is usually examined prior to an injunction becoming in full force and effect.

What you have been arguing is what most infringers do _prior to an injunction becoming active_. RIMM tried this with NTP by stating they had a workaround, but the judge in that case urged the sides to settle because the answer to the question of the workaround would have occured after the shutoff. *It was expected that Blackberry would have had to shut down their service until the courts found that the workaround didn't infringe.* Vonage said they had a workaround the Verizon patent, but then backpedaled and came to an agreement, saying they didn't have a workaround.

This case is totally different, only because the injunction is already active. It is much harder to get the injunction changed now that it is in full force and effect. It is possible to be changed? Yes. Is it likely to be changed? We'll see, because I would believe one of the first orders to come out of the 30 May hearing, if TiVo asks for a contempt proceeding, will more than likely be finding Dish Network in contempt of court.

Dish Network and Echostar can argue about new software all they want. If they don't comply with the injunction, and it will most likely be expected that they comply while seeing if their software no longer infringes, this will get truly ugly.


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## jacmyoung

Greg Bimson said:


> ...New "evidence"? This is usually examined prior to an injunction becoming in full force and effect....


But during a contempt hearing, new evidence is the key for the judge to decide if he should find the offending party in contempt or not. Even in the cases where it was clear the new devices were merely colorably different, the judges still allowed experts from all parties to testify before they decide on contempt charges. In this case it is my opinion DISH can easily convince the judge their new device is more than colorably different.

If you read the language of this injunction, you would agree if a new device is more than "only colorably different" it would satisfy the initial test of the injunction limitation.

The judge should not find the party in contempt if he decides the new device is more than colorably different, even though the injunction is in full force. And when there is no contempt ruling in place the party suffers no consequences while operating the new devices.

After the judge hears the infringement issues on the new device, and if the judge agrees with DISH the new software no longer infringes, again he will not issue a contempt ruling, additionally if DISH can convince the judge there will not be infringing devices in the future, the judge can even lift the injunction, but DISH does not even have to get that far.

If after the infringement hearing on the new software the judge determines the new device is still infringing, he can then issue a contempt of court ruling, or do something else in similar effect to punish DISH, and if DISH fails on appeals, they can be in a lot more trouble.


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## Curtis52

jacmyoung said:


> But during a contempt hearing, new evidence is the key for the judge to decide if he should find the offending party in contempt or not.


A contempt hearing is not a lets-change-what-the-injunction-says hearing. The evidence presented will only be whether the DVRs have been shut off or not.


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## Greg Bimson

jacmyoung said:


> But during a contempt hearing, new evidence is the key for the judge to decide if he should find the offending party in contempt or not. Even in the cases where it was clear the new devices were merely colorably different, the judges still allowed experts from all parties to testify before they decide on contempt charges. In this case it is my opinion DISH can easily convince the judge their new device is more than colorably different.


You wrapped yourself around the "TiVo may issue a temporary settlement" offer, because that is what one analyst says, but forgot that the same analyst said the listed DVR's will more than likely need their functionality shut off, because that is what the injunction states.

The listed DVR's are supposed to be shut down until DISH/SATS can possibly win with the fact they are no longer infringing, because the injunction is in effect.

The order says to shutdown the 501. A 501 with new software is not "colorably different", even with new software, until it is proven. Meanwhile, the 501 should still be shut down.


jacmyoung said:


> If you read the language of this injunction, you would agree if a new device is more than "only colorably different" it would satisfy the initial test of the injunction limitation.


And this is the one issue we go around. Since when is a 501 a new device? The "colorably different" language is to simply add newer devices (such as the 622 and 722, if they still infringe), not to reinterpret the existing devices which were to be shut down.


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## jacmyoung

Greg Bimson said:


> ... Since when is a 501 a new device? The "colorably different" language is to simply add newer devices (such as the 622 and 722, if they still infringe), not to reinterpret the existing devices which were to be shut down.


This is where we disagree. Due to the nature of this case one can argue a 501 with new software is indeed a new device because:

1) The hardware issue was reversed, so the 501 hareware itself is not an offending device anymore;
2) If a new softwware is installed in the said 501, and if the new software is more than colorably different than the old device--the old software, it then satisfies the injunction limitation.

Therefore DISH will not be in contempt of court while keeping the 501s on, even though the injunction is still in full force. Now the analyst was saying the judge will likely to be conservative, and still find DISH in contempt with the new software in the 501s.

What I am saying is in this case the analyst failed to recognize that DISH can appeal to such contempt ruling.

Since the purpose of an injunction is to prevent future infringement, not the past offense, which will be covered by the damages, the appeals court must take into consideration of the facts that now the 501 hardware never infringed, and in addition, the new software may not infringe too. If so the goal of the injunction would be met.

Any reasonable judges should not refuse to consider the above new facts. I am not saying judges always use common sense, but I have seem more often than not the judges were in favor of upholding the spirit of the law, over the language of the law.


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## Curtis52

jacmyoung said:


> This is where we disagree. Due to the nature of this case one can argue a 501 with new software is indeed a new device because:


Judge Folsom probably didn't know that the software gets revised several times a year on DVRs. If he wanted the DVRs shut down he should have just listed the model numbers of the DVRs. Wait a second... that's what he did.


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## jacmyoung

Curtis52 said:


> Judge Folsom probably didn't know that the software gets revised several times a year on DVRs. If he wanted the DVRs shut down he should have just listed the model numbers of the DVRs. Wait a second... that's what he did.


Tivo's submittal is due today, when will you be able to post a link to that?


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## Greg Bimson

jacmyoung said:


> Any reasonable judges should not refuse to consider the above new facts. I am not saying judges always use common sense, but I have seem more often than not the judges were in favor of upholding the spirit of the law, over the language of the law.


I generally agree with this.

However, realize that in order to accept "new facts", it is normally a mistake to cross the directive given by the court. Want the listed DVR's to be considered no longer infringing? Fine, as we said, because you had infringed, shut them down until we make that determination.

That is the whole point of an injunction. Either fix the problem quickly, or settle with a license. And that was the entire problem with the injunction. In most cases the District Court judge stays the injunction pending appeal. This one did not.

If Judge Folsom had stayed the injunction, this entire point of a shut down may be almost entirely moot, as the workaround would be introduced prior to an injunction issued in full force and effect. Even then, the judge may force the hand of the infringer, by telling the infringer that they are subject to the shut down until it is proven the work around doesn't infringe. That's exactly what happened in the Blackberry case.

If Dish Network goes as far as disabling the couple mllion offending DVR's, then I'd believe DISH would be in more of a dire strait than TiVo. Besides the customer defections, DISH would probably be hounded by TiVo, most likely by going after the hardware claims, so that all the new DVR's are also covered by the injunction.

There is a reason why most infringement suits never get this far. The injunction usually hurts from the teeth that are in it. Is this a special case where an injunction is supposed to be toothless?


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## jacmyoung

Which is why I tend to agree Judge Folsom is likely to find DISH in contempt and will not stay the injunction while he looks at the new device claim, but the appeals court may do otherwise. They did not have to stay the injunction last time when Judge Folsom did not wish to do so, but stayed it anyway.


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## Herdfan

jacmyoung said:


> Tivo's submittal is due today, when will you be able to post a link to that?


Yes, I came here looking for that and there were all these new posts rehashing the same thing. I thought there was something new.


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## Curtis52

Herdfan said:


> Yes, I came here looking for that and there were all these new posts rehashing the same thing. I thought there was something new.


See new thread.


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## James Long

TiVo files agenda for May 30 meeting in infringement suit


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