# Tivo vs EchoStar ... September 4th Hearing (w/transcript)



## James Long

Jump ahead to posts including the transcript ...
http://www.dbstalk.com/showthread.php?p=1790554&postcount=618


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## dgordo

9/4 Motion Hearing transcript


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## Herdfan

That made little sense.


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## Greg Bimson

TiVo originally addressed Walker v. Birmingham in their contempt filing from 13 June:


> Having passed up the opportunity to challenge the validity, scope, or specific terms of the injunction on appeal, EchoStar cannot do so now in the guise of arguing that the spirit of the injunction required something different from its literal terms. United States v. Ryan, 402 U.S. 530, 532 n.4 (1971) (citing Walker v. City of Birmingham, 388 U.S. 307 (1967)); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad; "collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available" (citing Ryan, 42 U.S. at 532 n.4)).


Here is the text of the transcript posted by dgordo if Acrobat is not for you:


> 10:00 ct opens; 2 motions;
> 10:00 ptys provide introduction;
> 10:00 Chu/ argues motion for contempt;
> 10:09 ct/ can you site me to a case, design around;
> 10:09 Chu/ responds; closest case to the following proposition;
> 10:12 McElhinny/ responds;
> 10:12 ct/ why didn't you tell the court that you were attempting a design around;
> 10:12 McElhinny/ responds;
> 10:13 ct/ status of Delaware action;
> 10:13 McElhinny/ pending with a motion to dismiss pending;
> 10:16 ct/ in briefing alerted, read FCC filings to find out about the design arounds;
> 10:16 McElhinny/ responds;
> 10:17 ct/ contempt proceedings, extent of design around;
> 10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
> 10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> 10:27 ct/ go forward with second motion;
> 10:28 Byrd/ damages motion;
> 10:30 ct/ time period
> 10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
> 10:32 ct/ Echostar started implementing design around in October of '06;
> 10:32 Byrd/ responds, end of October;
> 10:32 ct/ damages;
> 10:33 Byrd/ totally unaffected;
> 10:33 ct/ you feel entitled if there is a contempt order or not;
> 10:33 Byrd/ continues with argument;
> 10:36 McElhinny/ responds;
> 10:37 ct/ damages under that;
> 10:37 McElhinny/ responds;
> 10:37 ct/ that is the very minimum
> 10:38 McElhinny/ no;
> 10:43 Byrd/ reply;
> 10:47 ct/ will give it all the attention I can;
> *10:47 Chu/ other hrg if necessary to have it;
> 10:48 McElhinny/ huge pending discovery fight; and would appreciate if ct would look if this is the way you want to go;*
> 10:48 ct/ will reserve how to go forward until I do a little more looking;
> 10:49 adjourned;


I am unsure what TiVo counsel Chu and the reporter mean by "other hrg if necessary to have it", but I think it could mean the motion for contempt on the unadjudicated receivers was ready. It should mean "other hearing if necessary to have it", so the only outstanding hearing would be to go after the unadjudicated DVR's that are merely colorably different.

It is the only reason why I believe TiVo counsel McElhinny would have mentioned a "huge pending discovery fight".


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## TBoneit

There sure seemed to be lot missing from that pdf.


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## Curtis0620

10:12 ct/ why didn’t you tell the court that you were attempting a design around;


This line says alot.


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## James Long

Greg Bimson said:


> TiVo originally addressed Walker v. Birmingham in their contempt filing from 13 June:


Thanks.


TBoneit said:


> There sure seemed to be lot missing from that pdf.


Yep ... we had a "brief summary" like this for May 30th. A full transcript should be available later for all the gory details - including answers to the questions.


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## Bidderman9

TBoneit said:


> There sure seemed to be lot missing from that pdf.


Hmmmm... Here's Something we can all agree on :lol:


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## Greg Bimson

Curtis0620 said:


> 10:12 ct/ why didn't you tell the court that you were attempting a design around;
> 
> This line says alot.


This was posted over at Motley Fool on the link provided by James Long:

On the timing of the workaround:

The judge asked why the court was not informed that a workaround was possible, and why they developed it in secret? Mcilhiney said that TiVo could have learned of the workaround from their SEC filings. The judge chuckled and asked Mcilhiny if he expected the court to read the SEC filings?


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## James Long

In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.


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## nobody99

I thought this was interesting too, also from the Fool board:



> Chu said that under no circumstances did E* follow the injunction. Chu was citing a case Walker vs Birmingham. He said that even if the court accepted the defendants argument on the design around rendering the product non infringing, they were not free to ignore the injunction.
> 
> The Judge asked Mcilhiny if he agreed that just because there was a design around they still could be held in contempt. *Mcilhiny agreed that they could still be held in contempt.*


Yikes. Your defense team says you could be held in contempt?


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## Ergan's Toupe

James Long said:


> In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.


While certainly not illegal, I think we can rule out Charlie acting in good faith.


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## TBoneit

nobody99 said:


> I thought this was interesting too, also from the Fool board:
> 
> Yikes. Your defense team says you could be held in contempt?


Would you lie to someone that would know you were telling an untruth?

If they had said Should not could that would be different.


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## Herdfan

James Long said:


> In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.


Given they already had a judge tired of their shenanigans, very stupid.


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## nobody99

TBoneit said:


> Would you lie to someone that would know you were telling an untruth?
> 
> If they had said Should not could that would be different.


Well, for all the other stunts they've pulled, it certainly would have made sense to say something like, "no, your honor, we can't be held in contempt because we no longer infringe."


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## Ergan's Toupe

nobody99 said:


> Well, for all the other stunts they've pulled, it certainly would have made sense to say something like, "no, your honor, we can't be held in contempt because we no longer infringe."


I got the impression from talking to people that he has had enough of this BS and wants it over.

The walls are slowly closing around Charlie and his merry band of lawyers.


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## scooper

The short summary - about what we've been saying here. No further substantial action today.


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## scooper

Ergan's Toupe;1777248 said:


> While certainly not illegal, I think we can rule out Charlie acting in good faith.


No - we can't. Echostar was within their rights to develop said workaround. Nothing in the injunction NOR in case law requires them to notify the court until now. Or, the judge got said notice on the briefings for the 30 May hearing.


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## Ergan's Toupe

Herdfan said:


> Given they already had a judge tired of their shenanigans, very stupid.


From what I was told today, Folsom is not a happy camper and literally laughed in Mciilhiny's face when he asked Folsom if he would grant a stay if he found E* in contempt.

Not a good sign. But what do I know.


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## scooper

nobody99 said:


> I thought this was interesting too, also from the Fool board:
> 
> Yikes. Your defense team says you could be held in contempt?


Depends on what the judges ruling actually is - they can't pretend to be foreshadowing the judges decision.

I don't see it as anything more than a "yes/no" answer.


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## Ergan's Toupe

scooper said:


> No - we can't.


Folsom thinks so.


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## nobody99

scooper said:


> No - we can't. Echostar was within their rights to develop said workaround.


Absolutely true in the case of a new product (the modified design results in a different product). Absolutely untrue in the case of an already-adjudicated product (which was the sole purpose of today's hearing).

(quick note to jacmyoung: see how I can make a point in two sentences? :lol


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## scooper

nobody99 said:


> Absolutely true in the case of a new product (the modified design results in a different product). Absolutely untrue in the case of an already-adjudicated product (which was the sole purpose of today's hearing).
> 
> (quick note to jacmyoung: see how I can make a point in two sentences? :lol


SHow where such modification of an already adjudicated device is prohibited, either in the injunction itself or in caselaw.


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## dgordo

I just spoke with someone in the clerks office who said that a full transcript should be available by the end of the week.


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## scooper

dgordo said:


> I just spoke with someone in the clerks office who said that a full transcript should be available by the end of the week.


Would that be by the end of business tomorrow, or next friday (12 September) ?


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## Ergan's Toupe

scooper said:


> Depends on what the judges ruling actually is - they can't pretend to be foreshadowing the judges decision.
> 
> I don't see it as anything more than a "yes/no" answer.


"The Judge asked Mcilhiny if he agreed that just because there was a design around they still could be held in contempt. Mcilhiny agreed that they could still be held in contempt."

Uh Oh....

"Mcilhiney asked if found in contempt would the judge grant a stay? Folsom looked at him, chuckled, and said it was highly unlikely that he would issue a stay."

Double Uh Oh....

"The judge asked why the court was not informed that a workaround was possible, and why they developed it in secret? Mcilhiney said that TiVo could have learned of the workaround from their SEC filings. The judge chuckled and asked Mcilhiny if he expected the court to read the SEC filings?"

Three strikes and yer out, Uh Oh...

"The judge asked why the Delaware case was filed 30 min after the May hearing, yet the courtesy of mentioning it to the court was not extended. The judge said that while they were not duty bound to mention it, it would have been the fair thing to do. He went on to say that he felt Mcilhinys client could have gone about that in a better way."

Looks like Charlie finally ran out of Aces...


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## dgordo

scooper said:


> Would that be by the end of business tomorrow, or next friday (12 September) ?


my assumption was tomorrow


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## TBoneit

Did anyone else get the feeling that the judge was wishing the case would just go away and stop interrupting things?

The problem with Lawyers is that both sides will tend to tell their employer what they feel that employer wants to hear until the very end.

I wonder the lawyers have ever met as adversaries before? I'd love to see images of beth sides lawyers just to get a better feel for them.


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## nobody99

scooper said:


> SHow where such modification of an already adjudicated device is prohibited, either in the injunction itself or in caselaw.


Do you want me to link directly to the four or five thousands posts in on this forum where we've been discussing that?

I'll tell you what. Show me where an already-manufactured item under specific orders of an injunction can escape that injunction by being modified _without the court's approval_. Then we can talk.

Every single case DISH brings up deals with newly-manufactured devices.


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## Herdfan

TBoneit said:


> I'd love to see images of beth sides lawyers just to get a better feel for them.


Morgan Chu Bio touts TiVo representation

Harold McElhinny Bio says nothing about DISH representation


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## scooper

nobody99 said:


> Absolutely true in the case of a new product (the modified design results in a different product). Absolutely untrue in the case of an already-adjudicated product (which was the sole purpose of today's hearing).
> 
> (quick note to jacmyoung: see how I can make a point in two sentences? :lol


Let me really turn your assertion on it's head -

Echostar was ORDERED to modify the Infringing Devices, they did so, just not in the manner specified in the court order (but not prohibited in the court order either).


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## Herdfan

nobody99 said:


> Every single case DISH brings up deals with newly-manufactured devices.


So would that make this a case of first impression? If so, it is up to the judge to decide if a previously adjudicated device CAN be modified (with COA review). So it would probably be best not to pi** him off.


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## Greg Bimson

scooper said:


> SHow where such modification of an already adjudicated device is prohibited, either in the injunction itself or in caselaw.


Let me rephrase that...

The modification of the "already adjudicated device" is not prohibited. However, the injunction states the "already adjudicated device" is to be disabled. If the modification does not disable them, then it is most likely contempt.

So the question isn't about a modification being prohibited; it is that an order was simply given and was not followed in the manner prescribed by the order.

With that being said, it would be up to those that believe it is a smart choice to not follow the injunction order to find case law which allows something other than what the order prescribes. Yes, we have seen "Footprint 2.0", "KSM" and "Arbek", as well as a few others.

So I'll toss this one out there, thanks to jacmyoung:


> 837 F.Supp. 403
> MICHAEL FOODS, INC., and North Carolina State University, Plaintiffs,
> v.
> BARTOW FOODS, INC., Defendant.
> No. 90-269-CIV-T-17(A).
> United States District Court, M.D. Florida, Tampa Division.
> November 5, 1993.
> Page 404
> James D. Myers, Bell, Seltzer, Park & Gibson, P.A., Raleigh, NC, Jonathan Charles Koch, Jonathan C. Koch, P.A., Tampa, FL, for plaintiffs.
> V.J. Benincasa, Jr., Bartow Food Co., Bartow, FL, David Lee Partlow, John Blain Gibbons, Gibbons & Partlow, P.A., Tampa, FL, for defendant.
> MODIFIED1 ORDER ON PLAINTIFFS' MOTION TO COMPEL DEFENDANT TO SHOW CAUSE WHY IT SHOULD NOT BE HELD IN CONTEMPT
> KOVACHEVICH, District Judge.
> INTRODUCTION/OVERVIEW
> On January 8, 1993 Plaintiffs filed a MOTION TO COMPEL DEFENDANT TO
> Page 405
> SHOW CAUSE TO THE COURT AS TO WHY IT SHOULD NOT BE HELD IN CONTEMPT. *In this motion Plaintiffs allege that Defendant is violating the Court's June 29, 1992 ruling.* This order enjoins Defendant from infringing on Plaintiffs' patent, number 4,808,425 ('425). *In a series of motions Defendant alleged that it had added a vacuum process to the beginning of its prior process (which was formerly adjudicated as infringing).* Defendant further alleged that this vacuum process caused the thermal treatment to result in coagulation, and soluble protein loss (SPL) greater than 5%. As a result the Defendant asserts the new process does not violate the wording of the adjudicated claims. Plaintiffs argue, on a totally theoretical basis, that the vacuum process made the new process merely colorably different, and hence still infringed. Furthermore, Plaintiffs present expert testimony that theorizes that the new process could not cause coagulation, or affect the SPL as described by Defendant. This theory, though interesting, does not establish by even a preponderance of the evidence that Defendant's allegations are incorrect. Defendant has offered evidence of tests run at the National Food Laboratory which show that the SPL of the product is around 36%. As Plaintiffs point out, however, it is the SPL, and coagulation, resulting from the thermal treatment2 which is significant. This is a direct result of the wording of the claims at issue. These claims are 3, and 15 through 20 of the '425 patent. Hence, a substantial question of fact still remains. It must be determined whether the thermal treatment in Defendant's new process, cause coagulation, or SPL greater than 5%. Therefore, Plaintiffs have failed to show by clear and convincing evidence that Defendant should be held in contempt of Court, and the motion is denied."


Why would the defendant file "a series of motions" about modifications of the infringing process? Could it be that the defendant was trying to prove to the court that their process no longer infringed, so it could be free from the injunction?


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## Greg Bimson

scooper said:


> Echostar was ORDERED to modify the Infringing Devices, they did so, just not in the manner specified in the court order (but not prohibited in the court order either).


Acutally, two orders:

Echostar/Dish Network was ORDERED to stop selling the "Infringing Products".

Echostar/Dish Network was also ORDERED to disable the sold "Infringing Products" already in the hands of the end users. Any other modification of these devices is what is in question (for some reason), and as you've stated, by not following "the manner specifed in the court order" is cause for legal trouble.


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## TBoneit

Herdfan said:


> Morgan Chu Bio touts TiVo representation
> 
> Harold McElhinny Bio says nothing about DISH representation


Thanks, Interesting reading.

I guess the question is if Tivo was to get them turned off tomorrow is there a large long term benefit. I'm sure Charlie isn't the only one that litigates rather then settle.

Benefit would acrue if Tivo could get the courts to agree that there is only one way to make and sell a DVR, the Tivo way.

Philips for example sells a DVD recorder that can playback as it records from different parts of the same recording. is it a DVR? Panasonic sold DVD recorders that would let you start recording on a DVD-Ram disc and start playing it from the beginning even before it was finished recording.

Are they infringing too?


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## peak_reception

Ergan's Toupe;1777409 said:


> "The Judge asked Mcilhiny if he agreed that just because there was a design around they still could be held in contempt. Mcilhiny agreed that they could still be held in contempt."


 ET, no one has said that Echo couldn't be held In Contempt. The argument was/is that a finding of Contempt could/would be overturned on appeal. 


> "Mcilhiney asked if found in contempt would the judge grant a stay? Folsom looked at him, chuckled, and said it was highly unlikely that he would issue a stay."


 This one is more ominous for E* I thought Folsom might be angry. It never occurred to me that he might be so openly _contemptuous_ of E*'s arguments and actions by "chuckling" (according to an invested TiVo observer), at their answers. 


> "The judge asked why the court was not informed that a workaround was possible, and why they developed it in secret? Mcilhiney said that TiVo could have learned of the workaround from their SEC filings. The judge chuckled and asked Mcilhiny if he expected the court to read the SEC filings?"


 Uh Oh -- more chuckling! I agree. Although not against the law that anyone can figure, it goes to "acting in bad faith" and can definitely affect the Judge's ruling, either explicitly or implictly.



> "The judge asked why the Delaware case was filed 30 min after the May hearing, yet the courtesy of mentioning it to the court was not extended. The judge said that while they were not duty bound to mention it, it would have been the fair thing to do. He went on to say that he felt Mcilhinys client could have gone about that in a better way."


 Seems like a mild rebuke on the face of things, but it goes hand-in-hand with the secretive design-around and other bad faith behavior by E* in this case. Don't think he didn't read all those other court cases involving E* legal shenanigans too.



> Looks like Charlie finally ran out of Aces...


 I don't know about that. Charlie the Tuna is still 'on the hook' but he hasn't been reeled in yet. He's a slippery one!


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## scooper

Greg Bimson said:


> Acutally, two orders:
> 
> Echostar/Dish Network was ORDERED to stop selling the "Infringing Products".
> 
> Echostar/Dish Network was also ORDERED to disable the sold "Infringing Products" already in the hands of the end users. Any other modification of these devices is what is in question (for some reason), and as you've stated, by not following "the manner specifed in the court order" is cause for legal trouble.


No - the order said to disable the DVR function - it DID NOT say "you cannot modify them". BIG difference in this question. Echostar could have modified them all they want, and if they had disabled the DVR function they would not be in any trouble. So the 2 are not necessarily related.

Would you you like me to find your previous admission of this point in the last thread ?


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## peak_reception

dgordo said:


> I just spoke with someone in the clerks office who said that a full transcript should be available by the end of the week.


 Hopefully by tonight! Reading those hieroglyphics you posted earlier made my head hurt  .

p.s. Are you enjoying the leftovers of Hurrican Gustav today dgordo? I think Chicago's getting a lot more of it than Texarkana did, and the eye went right over the latter.


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## James Long

dgordo said:


> I just spoke with someone in the clerks office who said that a full transcript should be available by the end of the week.


It may need to be requested directly from the court. PACER doesn't get transcripts posted as fast due to allowing for retractions.


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## peak_reception

TBoneit said:


> I wonder the lawyers have ever met as adversaries before? I'd love to see images of beth sides lawyers just to get a better feel for them.


 Well there was this first report from the TiVo team from earlier today (off the Motley Fool board): 


> *He also said he saw a limo pull up with a short asian guy, a large white lady, and an old white guy. Sounds like it might be our legal team.*


 I got a Judge Folsom-like chuckle out of that. Better than nothing!


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## Greg Bimson

Greg Bimson said:


> Acutally, two orders:
> 
> Echostar/Dish Network was ORDERED to stop selling the "Infringing Products".
> 
> Echostar/Dish Network was also ORDERED to disable the sold "Infringing Products" already in the hands of the end users. Any other modification of these devices is what is in question (for some reason), and as you've stated, by not following "the manner specifed in the court order" is cause for legal trouble.





scooper said:


> No - the order said to disable the DVR function - it DID NOT say "you cannot modify them". BIG difference in this question. Echostar could have modified them all they want, and if they had disabled the DVR function they would not be in any trouble. So the 2 are not necessarily related.
> 
> Would you you like me to find your previous admission of this point in the last thread ?


Once again, I think we are saying the exact same thing.

The order did not prohibit DISH/SATS from any modification; the order prescribed ONE modification. The question is whether any other modification can even be considered as in the spirit of compliance with the injunction.


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## James Long

Herdfan said:


> Morgan Chu Bio touts TiVo representation
> 
> Harold McElhinny Bio says nothing about DISH representation


Uh ...


> Represented EchoStar in three-week trial before the U.S. International Trade Commission. The Administrative Law Judge ruled that EchoStar and had not infringed any of the GemStar patents at issue. This decision was adopted by the full Commission.


Not this case, but DISH is listed as one of his "Representative Matters".


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## James Long

scooper said:


> No - the order said to disable the DVR function - it DID NOT say "you cannot modify them". BIG difference in this question. Echostar could have modified them all they want, and if they had disabled the DVR function they would not be in any trouble.


DISH can modify their named infringing products all they want ... as long as they _*DISABLE*_ the DVR functionality on those placed products and not enable the DVR functionality on new placements of those products.


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## Herdfan

James Long said:


> Uh ...Not this case, but DISH is listed as one of his "Representative Matters".


My point was Chu's bio touted him winning a $74M verdict for TiVo against Echostar.

McElhinney's bio didn't mention him losing a $74M verdict to TiVo or even representing them in this case.


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## nobody99

scooper said:


> No - the order said to disable the DVR function - it DID NOT say "you cannot modify them". BIG difference in this question. Echostar could have modified them all they want, and if they had disabled the DVR function they would not be in any trouble.


I don't understand the confusion with this. No one in the TiVo camp is suggesting that they can't be modified. What we are suggesting is that whatever modifications happen, if they still have DVR functions, they will be violating an injunction.

Maybe this will help clear up my point:

Let's say that DISH's new software is found by a court not to infringe on TiVo's patent. That software is downloaded to every DVR.

The 4 million DVRS which were found to infringe are still subject to the original injunction.

Let's say that TiVo brings up a seperate contempt charge on newly-manufactured DVRS that were one of the eight-named models. Judge Folsom rules them more than colorably different and DISH is in the clear.

The 4 million DVRS which were found to infringe are still subject to the original injunction.

Let's say that DISH goes in front of Judge Folsom and says, "Judge, buddy, our software is now cleared by a court to no longer infringe, you've cleared newly-manufactured devices. We've downloaded the exact same software to the 4 million dvrs. We're good now, right?"

Judge Folsom only has one legally-correct answer: No. Those 4 million DVRs can't ever write to hard disks again, unless TiVo allows it.

If Judge Folsom rules that they _are_ in the clear, TiVo has a rock-solid case on appeal.

The problem for DISH is simple: they had two opportunities to get the injunction language changed so it would allow them to change the software. They didn't do it. They don't get another chance. Think of it as double jeopardy in reverse.


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## scooper

No - my problem was you stating that Echostar COULD NOT MODIFY THEM AT ALL. You just changed your position from what I was responding to. Echostar can modify them all they want (find something to say they can't), but they were supposed to disable the DVR functions.


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## dgordo

peak_reception said:


> Hopefully by tonight! Reading those hieroglyphics you posted earlier made my head hurt  .
> 
> p.s. Are you enjoying the leftovers of Hurrican Gustav today dgordo? I think Chicago's getting a lot more of it than Texarkana did, and the eye went right over the latter.


From what I understand it was raining all day. Ive been spending most of the day in windowless conference rooms.


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## Bidderman9

Ruling in TiVo, EchoStar case could be delayed

http://www.reuters.com/article/marketsNews/idINN0447724620080905?rpc=44


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## James Long

Bidderman9 said:


> Ruling in TiVo, EchoStar case could be delayed
> 
> http://www.reuters.com/article/marketsNews/idINN0447724620080905?rpc=44


Investors, who expected the ruling on Thursday, sent TiVo's shares down 16.5 percent, or $1.44, to $7.31.​A little impatient? A little insecure?
U.S. District Judge David Folsom said he would try to rule by Oct. 1 but failing that, would have to delay a finding until after the end of that month, according to attorneys who attended the hearing.​


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## scooper

I think most of us were NOT expecting anything earth shattering today, and we got that...


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## HobbyTalk

> EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.


Are they saying that TiVo's lawyers admitted the "work-around" doesn't infringe?


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## jclewter79

I understand what you you guys are saying about the fact that the DVR's were ordered shut down so, they must be shut down. The ones that have been sold since the infringing ones with new software do not infringe because they were not listed in the 4 million in the injunction and have new software. BUT the ones listed in the infringment must be shut down EVEN THOUGH THEY ARE EXACTLY THE SAME AS THE ONES THAT WERE MANUFACTURED AFTER THE INFRINGMENT TOOK PLACE. That has to be the dumbest thing I have ever heard. Can E* pay for the infringement that previously took place and the be good on the old ones or, are they going to have to replace everybodies infringing DVRs with exact same models to be good. If tivos lawyers did in fact admit that the new software does not infringe then I do not see how they would ever have a case if they wanted to claim that the VIPs infringe. They were never listed and they contain software that even tivo reconizes as a workaround.


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## scooper

Things still have a ways to go before it's completely played out. I wouldn't put my money anywhere right now.


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## Curtis52

HobbyTalk said:


> Are they saying that TiVo's lawyers admitted the "work-around" doesn't infringe?


That appears to be what the reporter is saying but we know that never happened. It's just sloppy reporting.


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## James Long

jclewter79 said:


> I understand what you you guys are saying about the fact that the DVR's were ordered shut down so, they must be shut down. The ones that have been sold since the infringing ones with new software do not infringe because they were not listed in the 4 million in the injunction and have new software.


Reference the models ... there are eight named models that have been adjudicated as infringing. DVR functionality was ordered disabled on placed receivers of those eight models ... any new placements of those eight models must have DVR functionality disabled. This does NOT allow for new vs old of these models. (One of the flaws in the injunction, IMHO.)


> BUT the ones listed in the infringment must be shut down EVEN THOUGH THEY ARE EXACTLY THE SAME AS THE ONES THAT WERE MANUFACTURED AFTER THE INFRINGMENT TOOK PLACE. That has to be the dumbest thing I have ever heard.


When the focus is on "infringing products", the old product is the same as the new product and the injunction covers new placements of the product? Fair or not that is the injunction.


> Can E* pay for the infringement that previously took place and the be good on the old ones or, are they going to have to replace everybodies infringing DVRs with exact same models to be good.


If Tivo settles with DISH then anything can happen. DISH paying the $212 million that Tivo wants in damages doesn't allow DISH to continue operating the infringing receivers -- but if DISH and Tivo come up with a deal there are no limits.


> If tivos lawyers did in fact admit that the new software does not infringe then I do not see how they would ever have a case if they wanted to claim that the VIPs infringe. They were never listed and they contain software that even tivo reconizes as a workaround.


When we see a full transcript we'll know more. Most likely Tivo was discussing "theoretical" non infringing software.


----------



## nobody99

scooper said:


> No - my problem was you stating that Echostar COULD NOT MODIFY THEM AT ALL. You just changed your position from what I was responding to. Echostar can modify them all they want (find something to say they can't), but they were supposed to disable the DVR functions.


I'm really sorry for not communicating that better - I absolutely agree they can modify them to their heart's content, but they will be in contempt if it records shows to disk.


----------



## nobody99

Something occurred to me with an earlier post that might best illustrate how unfair our judicial system can seem.

Let's say a guy breaks into my house and kills me and my wife.

The prosecutor thinks he has a good case, so he charges the guy who was arrested for the murders based on solid circumstantial evidence.

But his defense attorney is pretty good. He gets the jury to question the evidence (it is, after all, circumstantial). He's acquitted of the crime.

A year later, new evidence in the form of DNA, plus video footage of a webcam that I was running comes out. It shows the guy (who was arrested, tried, and acquited) clearly in the video and the DNA belongs to him. There is absolutely no doubt that this guy is the one who killed me.

Too bad. The chance was blown. He can never be convicted of killing me, ever.

That doesn't seem fair now, does it?

It's the same - in reverse - with the four million dvrs. They were found guilty. They don't get another chance to be found innocent.


----------



## peak_reception

James Long said:


> It may need to be requested directly from the court. PACER doesn't get transcripts posted as fast due to allowing for retractions.


 Retractions? or Redactions?


----------



## peak_reception

Bidderman9 said:


> Ruling in TiVo, EchoStar case could be delayed -- (according to Reuters article)


 The reporter also erroneously states that the hearing took place in Marshall TX. Sloppy, sloppy, sloppy. Oh wait, I made that same error a few hundred posts back in the other thread. just an honest, understandable mistake then.


----------



## James Long

peak_reception said:


> Retractions? or Redactions?


:sure: Redactions ... (one stinking letter). 

Or as it was put for the transcripts from May 30th:


> NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov
> 
> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 6/27/2008. Redacted Transcript Deadline set for 7/7/2008. Release of Transcript Restriction set for 9/4/2008. (aec, )


FYI: The transcript from May 30th is now available via PACER ... not sure if it was released today or not. I don't see any redactions (or retractions) in it. Thanks to Mainer for retrieving the transcripts posted three months ago.

BTW: May 30th transcripts were signed off by the transcriber on June 2nd, the next business day.


----------



## scooper

nobody99 said:


> It's the same - in reverse - with the four million dvrs. They were found guilty. They don't get another chance to be found innocent.


It's NOT the devices that were found "guilty" - it's the company. The devices are just manifestations of the guilty party.

And in patent law - If they can come up with a non-infringing workaround -


----------



## James Long

nobody99 said:


> Too bad. The chance was blown. He can never be convicted of killing me, ever.
> 
> That doesn't seem fair now, does it?
> 
> It's the same - in reverse - with the four million dvrs. They were found guilty. They don't get another chance to be found innocent.


But it is not the same in reverse ... that person is found guilty of murdering you CAN be found innocent later. A guilty verdict doesn't stick forever like an innocent verdict. (It can even go away if there is an error in the prosecution of the case - despite actual guilt.)

In this case the adjudicated named infringing products infringe until a court rules otherwise.


----------



## phrelin

James Long said:


> In this case the adjudicated named infringing products infringe until a court rules otherwise.


It's clearer to me now.

If the court had ruled that then existing Dish black DVR's were the infringing DVR's because TiVo had patented the black DVR, even if Dish had subsequently during the appeal process painted my 508's green, Dish would be legally obligated to lock them in a closet into which no light could enter until the court rules otherwise. All because they simply cannot be allowed to reflect light as green, the actual color now, as that would offend the legal system.

This is a classic example of the legal system creating results not determined by necessity or reason, something that regularly happens.


----------



## inkahauts

James Long said:


> If Tivo settles with DISH then anything can happen. DISH paying the $212 million that Tivo wants in damages doesn't allow DISH to continue operating the infringing receivers -- but if DISH and Tivo come up with a deal there are no limits.
> When we see a full transcript we'll know more. Most likely Tivo was discussing "theoretical" non infringing software.


I wonder if Dish went to Tivo to cut a deal, if Tivo would ask for more now than they would have before they made an agreement with Directv... While I'm still not convinced they are a strong company, the fact is they have more money now, guaranteed.... So they may push for more if Dish tries to settle... Of course, I don't see that happening unless Dish looses...


----------



## dgordo

James Long said:


> :sure: Redactions ... (one stinking letter).
> 
> Or as it was put for the transcripts from May 30th:FYI: The transcript from May 30th is now available via PACER ... not sure if it was released today or not. I don't see any redactions (or retractions) in it. Thanks to Mainer for retrieving the transcripts posted three months ago.
> 
> BTW: May 30th transcripts were signed off by the transcriber on June 2nd, the next business day.


The 5/30 transcripts have been available on pacer since 6/6


----------



## James Long

dgordo said:


> The 5/30 transcripts have been available on pacer since 6/6


Odd ... I tried to download them on June 13th and couldn't. At that time I just got a page with a similar message about redaction. I'm sure I tried later in June as well -- kinda gave up by July since we had the transcript and other things to talk about. Are you making your statement on the "Filed & Entered" date or an actual PACER download?


----------



## grooves12

Greg Bimson said:


> Once again, I think we are saying the exact same thing.
> 
> The order did not prohibit DISH/SATS from any modification; the order prescribed ONE modification.  The question is whether any other modification can even be considered as in the spirit of compliance with the injunction.


So, isn't changing the way the hardware performs the recording of TV essentially disabling the "DVR function" since the "DVR function" is what is patented by Tivo??

The only way you can answer no to that question is if you beleive Tivo holds the rights to ANY form of digital recording of video streams.

Personally, If I were Dish Network I would just be looking to the recent deal Tivo made with DirecTV and try to get a similar deal going with them. It would allow them to license the technology and keep all of their existing DVRs in service, and it would give Tivo an option for an additional revenue stream with Tivo Software or Hardware being offered on Dish.


----------



## grooves12

nobody99 said:


> It's the same - in reverse - with the four million dvrs. They were found guilty. They don't get another chance to be found innocent.


That shows you know absolutely nothing about this country's legal system...

It was built to err on the side of caution when it comes to presuming someone to be guilty. So, yes it is true that if you are found innocent the court system does not have anymore chances to try to show you are guilty.

However on the flipside, if found guilty you have numerous chances to prove that the ruling was incorrect and you are innocent.

This means that some guilty will go free... but it is much better than having numerous innocent people being unjustly punished.


----------



## Greg Bimson

grooves12 said:


> So, isn't changing the way the hardware performs the recording of TV essentially disabling the "DVR function" since the "DVR function" is what is patented by Tivo??


No.


grooves12 said:


> The only way you can answer no to that question is if you beleive Tivo holds the rights to ANY form of digital recording of video streams.


TiVo owns a patent on the process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus. It is affectionately called the "Time Warp" patent. Therefore, from the first question, "changing the way the hardware performs the recording of TV" is *not* "essentially disabling the DVR function".

DISH/SATS could have removed the Time Warp functionality from their DVR products. It would make the receiver work like a one-deck VCR: you cannot watch anything while the VCR was recording, except for the live recording. If this were the case, DISH/SATS could certainly change the way the hardware performs the recording of TV and not infringe.

However, in this case the injunction order says to disable the DVR functionality, which is a far different animal than simply making a non-infringing DVR.

That is why there has been such a big argument here. The 625's of today are supposedly different than the 625's of two years ago. However, DISH/SATS certainly can sell a 625 today as the software has been modified. DISH/SATS was ordered to disable the 625's installed more than two years ago and still active because they were found to infringe, even though now they may have software that makes them exactly as they are being sold today.

(technically, the 625 sold two years ago and the 625 sold now are exactly the same, as Dish Network supposedly doesn't download any software until the receivers are activated with a Dish Network account)


----------



## koralis

James Long said:


> DISH can modify their named infringing products all they want ... as long as they _*DISABLE*_ the DVR functionality on those placed products and not enable the DVR functionality on new placements of those products.


How about if they disable the DVR functionality, then subsequently modify the firmware and change the model numbers to reflect the fact when it's re-enabled? 

"ViP 622b is a new product that does not infringe on Tivo's patent, your honor. Most of our client base elected to upgrade to the new reciever. Yes, we could have forced the clients to ship it back to use so that we could replace the infringing software in the lab, but that places undue burden on the customer when it can be easily handled in the field."


----------



## Ergan's Toupe

koralis said:


> How about if they disable the DVR functionality, then subsequently modify the firmware and change the model numbers to reflect the fact when it's re-enabled?
> 
> "ViP 622b is a new product that does not infringe on Tivo's patent, your honor. Most of our client base elected to upgrade to the new reciever. Yes, we could have forced the clients to ship it back to use so that we could replace the infringing software in the lab, but that places undue burden on the customer when it can be easily handled in the field."


So Charlie should just play games with the court, right? The old "switcheroo"?


----------



## Greg Bimson

koralis said:


> How about if they disable the DVR functionality, then subsequently modify the firmware and change the model numbers to reflect the fact when it's re-enabled?
> 
> "ViP 622b is a new product that does not infringe on Tivo's patent, your honor. Most of our client base elected to upgrade to the new reciever. Yes, we could have forced the clients to ship it back to use so that we could replace the infringing software in the lab, but that places undue burden on the customer when it can be easily handled in the field."


That would have been great. That would have been wonderful. And that would have been absolutely the right thing to do if it were brought up in a motion for clarification, so that the product already found to infringe could be ruled upon by Judge Folsom as a way to avoid the injunction.

The place not to make that argument was during a motion for contempt:


> The judge asked why the court was not informed that a workaround was possible, and why they developed it in secret? Mcilhiney said that TiVo could have learned of the workaround from their SEC filings. The judge chuckled and asked Mcilhiny if he expected the court to read the SEC filings?


The parties are not in front of Judge Folsom to rule on the work-around. They are in front of Judge Folsom now because one party is accusing the other party of ignoring a court order. The defense of that charge is because there is a work-around, and that should have been an offensive move at the court to remove the worked-around devices from the scope of the injunction.

Unless, of course, the work-around still infringes.


----------



## scooper

koralis said:


> How about if they disable the DVR functionality, then subsequently modify the firmware and change the model numbers to reflect the fact when it's re-enabled?
> 
> "ViP 622b is a new product that does not infringe on Tivo's patent, your honor. Most of our client base elected to upgrade to the new reciever. Yes, we could have forced the clients to ship it back to use so that we could replace the infringing software in the lab, but that places undue burden on the customer when it can be easily handled in the field."


Your problem here is that are you actually "more than colorably different" or not ? A mere label change is not "more than colorably different", but a complete rework of the software is.

Greg - Tivo does not hold "a patent on THE process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus.", but rather "a patent on ONE process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus."

Saying anything else means saying that Tivo is the only one , the only way to perform that function. Surely you haven't forgotten about the lawsuits Tivo and Replay had going , over much the same thing ?


----------



## Greg Bimson

scooper said:


> Greg - Tivo does not hold "a patent on THE process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus.", but rather "a patent on ONE process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus."
> 
> Saying anything else means saying that Tivo is the only one , the only way to perform that function. Surely you haven't forgotten about the lawsuits Tivo and Replay had going , over much the same thing ?


You have that right. However, TiVo's and Replay's fight was slightly different. Replay was suing over TiVo's use of the simple play, stop, rewind and fast-forward functionality of a DVR, while TiVo only sued over the Time Warp aspect.

I'm no judge, so I certianly cannot rule upon it, but I am wondering if that single claim of TiVo's could be strong enough to preclude and prohibit many methods of Time Warp functionality in a DVR.


----------



## James Long

I thought we were down to infringement because of the "Barton Media Switch" and the way that the incoming streams were indexed, not because of the concept of "playback while record" (Time Warp)?

DISH's new software avoids the indexing (removed in software and not using the hardware function) and in their opinion no longer infringes on the patent.

That doesn't immediately clear the existing devices ... DISH should have notified the court and kept the process transparent. But the combination of cases DISH relies on should clear up all of the issues raised (primarily using the same model number on infringing vs uninfringing products and field modifying existing products via software).

What I'd like to see DISH counter is the issue of ignoring the injunction (Walker vs Birmingham) and not disabling the DVR functionality.


----------



## HobbyTalk

Curtis52 said:


> That appears to be what the reporter is saying but we know that never happened. It's just sloppy reporting.


So should we assume that all of that report is sloppy and none of it should be believed? Or should we assume that the points we want to believe are true and everything else is garbage?


----------



## James Long

We should appreciate some early insight into what happened yesterday from any source willing to make the effort to attend. It is fair to mention that the report is from a Tivo investor who does have a vested interest in the outcome, but no one should be insulting him. He isn't by profession a reporter.

Hopefully we'll have a "second opinion" in the form of a full transcript soon.


----------



## HobbyTalk

Greg Bimson said:


> No.TiVo owns a patent on the process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus.


You should change that statement. It should be

No.TiVo owns a patent on *A* process to record and playback a stream while recording a broadcast video/audio stream on a given apparatus.

They do not own the (or all) process, just the one single process that they patented. To state otherwise would mean that there is noy other process to record and playback.

[edited] Sorry, didn't see scoopers reply on this same point.


----------



## kstuart

James Long said:


> What I'd like to see DISH counter is the issue of ignoring the injunction (Walker vs Birmingham) and not disabling the DVR functionality.


You mean the truth ?

"Your honor, we did not inform the court because we thought the other party would be out of business at this point."


----------



## Ergan's Toupe

kstuart said:


> You mean the truth ?
> 
> "Your honor, we did not inform the court because we thought the other party would be out of business at this point."


Word. :lol:

<rant on>

The sad part is I think Charlie still believes he can BS his way out of this.

The biggest problem is we have a Judge that should grow a set and rule already. What the heck he is waiting for? Maybe he too thinks Tivo will go under and he won't have to deal with it anymore?

He's had three months to form some kind of opinion, what does he need another 2 months for? You wrote the injunction, Folsom, Do you even know what you wrote? IS E* IN CONTEMPT OR NOT!??! IT"S A SIMPLE YES OR NO QUESTION!!! WHY DOES IT TAKE 5 MONTHS TO ANSWER IT?

I think Folsom is just hoping that E* and Tivo settle. If he would just rule contempt (or not) I guarantee he would force a settlement. By dragging this crap out longer he is just delaying the whole process.

Just do your job and get it over with already, Folsom. This crap has been going on for over 4 years and needs to end. NOW!



<rant off>


----------



## Curtis52

HobbyTalk said:


> So should we assume that all of that report is sloppy and none of it should be believed? Or should we assume that the points we want to believe are true and everything else is garbage?


I think it's mostly just a matter of using common sense. It wouldn't make sense for TiVo's lawyers to state that they don't think the new Dish software infringes.


----------



## nobody99

grooves12 said:


> That shows you know absolutely nothing about this country's legal system...


Might want to look in the mirror, bubba. And please stop with the idiotic insults, it makes you look childish.

In patent cases, once a particular device is found to infringe and has lost on appeal, that's it. No future chance to get out of infringement if the injunction doesn't specifically provide it.

From one of TiVo's legal documents:



> The mandate rule provides that issues actually decided [on appeal]-those within the scope of the judgment appealed from, minus those explicitly reserved or remanded by the court-are foreclosed from further consideration." _Amado v. Microsoft_
> 
> [T]he mandate rule operates as a bar to [a] district court's reconsideration of the initial issuance of [an]
> injunction" where the judgment appealed from expressly notes that a permanent injunction has been entered. _Id. at 1360; see also Engel Indus., Inc. v. Lockformer Co._


----------



## Greg Bimson

James Long said:


> I thought we were down to infringement because of the "Barton Media Switch" and the way that the incoming streams were indexed, not because of the concept of "playback while record" (Time Warp)?
> 
> DISH's new software avoids the indexing (removed in software and not using the hardware function) and in their opinion no longer infringes on the patent.


There are only two claims left for which the court found infringement, claims 31 and 61, called the software claims. So it is not the method of the indexing which the Barton Media Switch employs that is the issue.

So even if the indexing is removed, the indexing is not the only problem regarding infringement.


Curtis52 said:


> I think it's mostly just a matter of using common sense. It wouldn't make sense for TiVo's lawyers to state that they don't think the new Dish software infringes.


In the very last motion TiVo filed, they stated they believed the newer software employed by DISH on their receivers still makes the receivers infringe. However, returning to the transcript...


> 10:17 ct/ contempt proceedings, extent of design around;
> 10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
> 10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> 10:27 ct/ go forward with second motion;


Unsure of what happened to the seven minutes from DISH/SATS counsel McElhinny until TiVo counsel Chu's statement needing not to respond to DISH/SATS claim.

I must assume this has something to do with the work-around.

I'm fairly certain that TiVo would not admit that the design-arounds do not infringe, otherwise there is no threat that TiVo files a motion for newer contempt hearings. And that certainly seemed to be the case, as DISH/SATS counsel McElhinny said there'd be a huge pending discovery fight.


----------



## James Long

nobody99 said:


> Might want to look in the mirror, bubba. And please stop with the idiotic insults, it makes you look childish.


Bubba? Idiotic? Pot, kettle, black?

It would be nice if everyone would refrain from insults ... even non-idiotic ones.


> In patent cases, once a particular device is found to infringe and has lost on appeal, that's it. No future chance to get out of infringement if the injunction doesn't specifically provide it.


Modification of a product so it no longer infringes is certainly allowed. The injunction doesn't need a specific out. If you're looking for the out in this injunction look at the "stop building/selling/placing infringing products" part of the injunction. DISH is free to design and build/sell/place non-infringing products.

Where DISH failed is the next part of the injunction ... disabling the DVR functionality. We'll see if that is contempt or not when the judge rules.


----------



## Curtis52

Greg Bimson said:


> I'm fairly certain that TiVo would not admit that the design-arounds do not infringe, otherwise there is no threat that TiVo files a motion for newer contempt hearings. And that certainly seemed to be the case, as DISH/SATS counsel McElhinny said there'd be a huge pending discovery fight.


If TiVo thought that the Dish software didn't infringe, they would request a dismissal of the Delaware suit on that basis.


----------



## dgordo

James Long said:


> Odd ... I tried to download them on June 13th and couldn't. At that time I just got a page with a similar message about redaction. I'm sure I tried later in June as well -- kinda gave up by July since we had the transcript and other things to talk about. Are you making your statement on the "Filed & Entered" date or an actual PACER download?


I remember downloading from PACER around that time because I remember I was in a hotel room in LA at the time I downloaded the doc from PACER.


----------



## Curtis52

dgordo said:


> I remember downloading from PACER around that time because I remember I was in a hotel room in LA at the time I downloaded the doc from PACER.


My copy of the full 5-30 transcript was put on my computer on June 3.


----------



## nobody99

James Long said:


> Bubba? Idiotic? Pot, kettle, black?
> 
> It would be nice if everyone would refrain from insults ... even non-idiotic ones.


Honestly, I was acting in self-defense 



> Modification of a product so it no longer infringes is certainly allowed.


Actually modification of a design that produces a product is allowed. Once a product has actually been produced, and an individually-identified device is declared to infringe, it's "game over man" for that device. That's my point. The hearing on Friday was only for the already-manufactured identified devices. They can't ever have DVR functions again. Double jeopardy in reverse.



> The injunction doesn't need a specific out. If you're looking for the out in this injunction look at the "stop building/selling/placing infringing products" part of the injunction. DISH is free to design and build/sell/place non-infringing products.


I absolutely agree, and have repeated said so, that DISH is allowed to _design_ around the patent. Once the new design creates a new individually-identifiable device, that particular device may or may not be subject to the original injunction based on colorably differences. I have no problem whatsoever with that.



> Where DISH failed is the next part of the injunction ... disabling the DVR functionality. We'll see if that is contempt or not when the judge rules.


Yep. Just like a prosecutor who doesn't do his job getting a conviction (and the accused can never be charged again with that crime) DISH's lawyers didn't do a good job with the wording of the injunction, and the accused devices can never get of of jail.

DISH should have tried harder to get the language of the injunction changed for the already-built devices. They should have raised the point at the appeals level that if part of the ruling is overturned but not the other part that the injunction should be remanded. They did neither. They blew it.


----------



## peak_reception

Curtis52 said:


> If TiVo thought that the Dish software didn't infringe, they would request a dismissal of the Delaware suit on that basis.


 No they wouldn't because that makes the issue about software instead of jurisdiction. Exactly what TiVo doesn't want. They want the case to stay in Texas. All of it.


----------



## peak_reception

James Long said:


> We should appreciate some early insight into what happened yesterday from any source willing to make the effort to attend. It is fair to mention that the report is from a Tivo investor who does have a vested interest in the outcome, but no one should be insulting him. He isn't by profession a reporter.


 I think you've got two separate reports confused. The back and forth here (which I am not involved in) is about what the REUTERS reporter wrote. Not about Mike the TiVo investor who drove 2 hours to attend. No one that I'm aware of has any issue with what Mike reported on Motley Fool. That was good stuff! The REUTERS report, on the other hand, presumably by a professional reporter, had errors in it. The one error in discussion here was a whopper, basically stating that TiVo admits that Dish's new workaround no longer infringes. Not true. At least that's how I remember it. Let me go and re-check. 


> Hopefully we'll have a "second opinion" in the form of a full transcript soon.


 Amen to that!


----------



## Curtis52

peak_reception said:


> No they wouldn't because that makes the issue about software instead of jurisdiction. Exactly what TiVo doesn't want. They want the case to stay in Texas. All of it.


It makes the software a non-issue. A demised issue. Moot.


----------



## peak_reception

Curtis52 said:


> It makes the software a non-issue. A demised issue. Moot.


 Only if the judge in DE grants the motion. Why would he? Simply on TiVo's claim? No.


----------



## Greg Bimson

I almost missed it, but seeing peak's argument he did miss it...


Curtis52 said:


> If TiVo thought that the Dish software *didn't* infringe...


...then TiVo would simply let the Delaware suit go and not bring any action on receivers sold with the new software as of 2006. Of course, any ruling should not apply to any of the receivers already found infringing.

Of course, TiVo does still believe (dare I say) ALL SATS-made DISH receivers infringe, and is trying to get the Delaware case dismissed. Otherwise, it could either be moved because of existing jurisdiction back to Texas, or could simply be tried in Delaware. TiVo wants to march ahead with their own schedule and not be bound by any filings DISH/SATS is making.


----------



## Curtis52

peak_reception said:


> Only if the judge in DE grants the motion. Why would he? Simply on TiVo's claim? No.


A declaratory lawsuit requires a controversy. If TiVo says that Dish's software doesn't infringe and if Dish says that their software doesn't infringe then there is no controversy. If there is no controversy there is no reason to have a lawsuit.


----------



## peak_reception

Yes, here it is, from the last paragraph of the REUTERS story: 


> EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, *TiVo lawyers said*. (my emphasis)


 TiVo has not -- and would not -- concede that EchoStar's "work-around" does NOT use TiVo's patented processes.


----------



## dgordo

Curtis52 said:


> My copy of the full 5-30 transcript was put on my computer on June 3.


As I recall your copy did not come from PACER.


----------



## peak_reception

Curtis52 said:


> A declaratory lawsuit requires a controversy. If TiVo says that Dish's software doesn't infringe and if Dish says that their software doesn't infringe then there is no controversy. If there is no controversy there is no reason to have a lawsuit.


 Ok, now back to the real world situation; TiVo believes that Dish still infringes.


----------



## James Long

Curtis52 said:


> My copy of the full 5-30 transcript was put on my computer on June 3.


I believe Tivo community had one direct from the court (link posted in one of the other threads then a "broken" version posted by me that allowed copying text for the benefit of quoting sections in the thread). The PACER version isn't copy protected.

TiVo Community attachment link posted
TiVo Community post referenced
"Unlocked" version posted

Anyways ... we have that one and have discussed it well. Hopefully we'll get the new one soon!


----------



## peak_reception

You mean that THIS was the source of all the speculation about whether or not TiVo was conceding that the new software may no longer infringe?? 


> 10:17 ct/ contempt proceedings, extent of design around;
> 10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
> 10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> 10:27 ct/ go forward with second motion;


 A waste of energy. Tea Leaves. Hieroglyphics. Wait for the Rosetta Stone in the form of a complete transcript. Even then we won't have the winks and chuckles.


----------



## James Long

peak_reception said:


> You mean that THIS was the source of all the speculation about whether or not TiVo was conceding that the new software may no longer infringe??


No ... it was a post on an investor chat website quoting an observer in the courtroom. The actual report posted later by that observer directly on another investor chat website doesn't contain that inference.

I agree that the full transcript should clear it up. Be patient!


----------



## peak_reception

> Originally Posted by peak_reception
> You mean that THIS was the source of all the speculation about whether or not TiVo was conceding that the new software may no longer infringe??





James Long said:


> No ... it was a post on an investor chat website quoting an observer in the courtroom. The actual report posted later by that observer directly on another investor chat website doesn't contain that inference.
> 
> I agree that the full transcript should clear it up. Be patient!


 Patience, yes. That's what I advised too. The post that you're replying to was directed at Curtis and Greg, not you. I still don't see where anyone belittled what the TiVo investor posted 

I did go back and read investor Mike's firsthand accounts and there was nothing about TiVo conceding anything unusual. Rumors! The REUTERS story was the main culprit imho.


----------



## Greg Bimson

This is a partial transcript from the guy Mike from the TiVo Investor Village Board at the hearing. It is located in two parts at the TiVo Investor Village board:


> In the Court Room.
> 
> *10:00 ct opens; 2 motions;
> 10:00 ptys provide introduction;
> 10:00 Chu/ argues motion for contempt;*
> 
> HJF enters, seems nice, but does remind me of Judge from, "My cousin Vinny".
> 
> Tivo lead counsel up, quickly goes into presentation. 3 pts.
> 1. a no contempt finding allows E* to engage in mischief.
> 2. Nothing ever raised in appeals stating injunction was improper or wrong.
> 3. E* has never and did not disable funtions in any way, shape or form in a "Real World Sense".
> 
> Tivo is making strong presentation with huge visuals on screen. HJF was reading intently.
> Major case relied on is, Walker V. Birmingham, States, " even if we accept defendants arguments, defendant was not free to ignore courts order"
> 
> HJF asks TIVO why/what is different in this case from recent KSM case?
> 
> Tivo KSM settled, no full trial, seperate products, new products, did not address full adjucation, (jury, appeal, etc).
> 
> *10:09 ct/ can you site me to a case, design around;
> 10:09 Chu/ responds; closest case to the following proposition;*
> 
> HJF Any cases to cite infringement violation vs "Work around"? or do they enjoin the provision of infringement?
> 
> Tivo cites GTE V. Consumers union, "Must obey decree until it is changed by court." your honors order has not been changed.
> 
> *10:12 McElhinny/ responds;
> 10:12 ct/ why didn't you tell the court that you were attempting a design around;*
> 
> E* opening, KSM is key and only case.
> 
> HJF Why didn't you address this with this court???
> E* silent for long period, then said it was, "irrelevant."
> 
> HJF, "Irrelavent? why didn't you advise any of us you were attempting a work around?" "you are telling me, your client made a business decsion to do a 'work around' and didn't let me or the appeals court know?"
> 
> *10:12 McElhinny/ responds;
> 10:13 ct/ status of Delaware action;
> 10:13 McElhinny/ pending with a motion to dismiss pending;*
> 
> "what is the status of DE?"
> 
> E* we filed and TIVO response, waiting for court
> 
> HJF "we had a hearing. then you filed an action in DE. Why? You knew it would be filed in 30 minutes, 45 minutes at the most , after our last hearing. You didn't alert this court you would file! you want fairness? Seems your client could have gone about this in a much different action."
> 
> *10:16 ct/ in briefing alerted, read FCC filings to find out about the design arounds;
> 10:16 McElhinny/ responds;
> 10:17 ct/ contempt proceedings, extent of design around;*
> 
> HJF not happy with E*. HJF said he didn't know if he was "required to be alerted, but"
> 
> E* said they were sorry, but advised their issues with TIvo, were "in their SEC filings."
> 
> HJF, "Do you expect this court to read your SEC filings?" "just because there may be a design around, doesn't mean I can't hold or find you in contempt." E* agrees. "Design around doesn't mean a 'new action''', We need middle ground.
> 
> E* argues disputes about what contempt means. says Tivo wants "Rolling Contempts."
> 
> HJF asks if E* believes Tivo attorneys would agree with them?? smiles really big.
> 
> HJF says "Not my decsion to decide if DE is wrong court."
> 
> E* argues they should be able to simply install new software and not recall yet to be delivered infringing boxes. trying to explain to HJF, how his injunction is correct and what is in it. what it means. says "a more than colorful difference" is a "Sham"
> 
> HJF quickly comes back and says, "no where have I read an opinion saying it was a sham"
> 
> *10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;*
> 
> E* tries to back peddle.
> E* asks for court to "stay" if they are found in contempt.
> HJF, "If you are in contempt of my order, I think it is highly unlikely I will Stay it." big smile, " you can appeal it.
> 
> E* talks about how much they have repected court and it's decsions, just kiss ass stuff.
> 
> *10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> 10:27 ct/ go forward with second motion;
> *
> 
> Tivo back up;
> HJF Do you agree I can go forward w/contempt w/out discovery?
> 
> Tivo disagree, 2 issues. 1st is was injunction on it's face violated. 2nd if it was, we need discovery on "new" products. if you find contempt, we need to come back for further remedy.
> 
> *10:28 Byrd/ damages motion;*
> 
> Tivo attorney 'Christine_______, comes up to explain damages.
> 
> *10:30 ct/ time period
> 10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
> 10:32 ct/ Echostar started implementing design around in October of '06;
> 10:32 Byrd/ responds, end of October;
> 10:32 ct/ damages;
> 10:33 Byrd/ totally unaffected;
> 10:33 ct/ you feel entitled if there is a contempt order or not;
> 10:33 Byrd/ continues with argument;*
> 
> 3 categories of damages. up to 4-08, tivo wants $168,660,114. If E* is in contempt they want $220,349,154.
> 
> Tivo claims new post verdict royalty rate should be $2.25 per box, based on, Amando V. Microsoft.
> says court must come up with new rate and not rely on jury finding of $1.25 per box.
> 
> *10:36 McElhinny/ responds;
> 10:37 ct/ damages under that;
> 10:37 McElhinny/ responds;
> 10:37 ct/ that is the very minimum
> 10:38 McElhinny/ no;*
> 
> E* says mandate of Appelant court says HJF should find what harm was done to Tivo during stay. E* states it owes $16,400,809. HJF states that seems to be a "very minimal amount" owed.
> 
> E* if there are extra damages, above $16mil, more proceedings necessary.
> 
> HJF laughs at that idea. asks E* if they have read, Pace V. Toyota?? E* said they had.
> HJF to E*, "You have to conceed $16mil, is very minimal." E* conceeds.
> 
> E* won't stipulate HJF can retroactively modify royalty rate.
> E* argues cheap $1,25 per box works good. goes into risk analysis explanation whats to possibly introduce to the record
> HJF states, " good luck with that."
> Tivo states E* likes the old $1.25 rate because they have already raised their rate to $2,25 to cover costs.
> 
> *10:43 Byrd/ reply;*
> 
> Tivo, totally shuts down E* and they arguments about the type of escrow being used, where to put the money. states E* "has totally misrepresented the escrow to this court, we have a Rule62B escrow and it is totally different that the Amando escrow."
> 
> HJF, "Tivo is like PACE and E* is like Toyota"
> 
> TIVO, "E* has conceeded they owe minimal dages of $16mil since 4-08." "that doesn't include our experts loss off profit which takes it to $43,047,753.00."
> 
> HJF appears to be losing interest when all the moeny stuff is going. Tivo damage attorney sees this and ends, leaving her time to lead attorney.
> 
> *10:47 ct/ will give it all the attention I can;
> 10:47 Chu/ other hrg if necessary to have it;
> 10:48 McElhinny/ huge pending discovery fight; and would appreciate if ct would look if this is the way you want to go;
> 10:48 ct/ will reserve how to go forward until I do a little more looking;
> 10:49 adjourned;*
> 
> HJF "cases like this never end." "I know the parties wish I can have an order out in the next couple days, but i've got some large cases coming up before I go to Marshall in October. I'll work on it when I can when I have time." " may have it out by October 1st."
> 
> E* States Huge discovery ahead if they are found in contempt and if discovery is allowed on new products.
> 
> HJF "reserves" to look into further hearings if he finds it necessary.
> END of hearing.


----------



## HobbyTalk

Thanks, nice unbiased report!


----------



## peak_reception

HobbyTalk said:


> Thanks, nice unbiased report!


 From a TiVo investor's viewpoint, yes, but still more revealing than the shorthand minutes. The official _complete_ transcript will be best of all but even it won't have some of the "color" Mike provides (chuckles & winks)  It's always good to have more than one report even when there are errors imo. The official complete version will correct any errors.


----------



## Ergan's Toupe

Greg Bimson said:


> 10:16 ct/ in briefing alerted, read FCC filings to find out about the design arounds;


Is it safe to assume they mean "SEC" not "FCC"? :grin:


----------



## nobody99

Ergan's Toupe;1780443 said:


> Is it safe to assume they mean "SEC" not "FCC"? :grin:


Probably, but from the court's reaction, it doesn't much matter. There's a 100% chance they wouldn't have looked at either :lol:


----------



## Ergan's Toupe

Greg Bimson said:


> This is a partial transcript from the guy Mike from the TiVo Investor Village Board at the hearing. It is located in two parts at the TiVo Investor Village board:


Even if Mike "embellished" his report a bit, you have to admit he was dead on. The guy doesn't have as much of horse in this race as you might think.

After reading this again a couple of things....

I know that Charlie had the right to do what he did, but I can't see how it helps to PO a Federal Judge. It reeks of desperation and I think Folsom sees that now.

If anyone thinks Folsom isn't PO'ed at Chuckles going behind his back on the design around and the DE case is kidding themselves.

It looks like this is the complete opposite of May's hearing where Folsom seemed to be PO'ed at Tivo and Chu. I think Mchinily knows this is coming to an end is looking for a life ring (anything) to keep from going under.

I don't see who brought up the DE case. From the transcript it looks like Folsom did. I think he has also been in contact with DE and they are going to dismiss.

I say it's 70/30 Folsom finds contempt.

As far as damages go, this is interesting and I wonder if Chu will use this:

"Broadcom said in a statement that the court had reserved determination of whether Qualcomm should also be held in contempt for post-injunction offers to sell infringing chips based on , pending additional discovery and proceedings.
Broadcom said that as well as owing it gross profits from QChat, the judge also ordered Qualcomm to pay Broadcom's attorneys fees in connection with contempt proceedings.
"Qualcomm's conduct demonstrates a startling lack of respect for its competitors' intellectual property, industry standards-setting processes, and the courts," David Rosmann, Broadcom's vice president for intellectual property litigation, said in the statement."

If Tivo can somehow persuade Folsom to consider gross profits, Charlie better hire a couple of body guards to protect him from his shareholders. Charlie's "stubbornness" is now turning into stupidity. I realize he considers himself a gambler, but to take a gamble on a contempt charge with possible gross profits? How would a settlement of 2.25 a box look then?


----------



## Ergan's Toupe

nobody99 said:


> Probably, but from the court's reaction, it doesn't much matter. There's a 100% chance they wouldn't have looked at either :lol:


Maybe that's Charlie's next stalling move.

"Of course you didn't know about our double secrect work around, you were reading our SEC filings when you should have been reading our FCC filings!"


----------



## James Long

Ergan's Toupe;1780487 said:


> I know that Charlie had the right to do what he did, but I can't see how it helps to PO a Federal Judge. It reeks of desperation and I think Folsom sees that now.
> 
> If anyone thinks Folsom isn't PO'ed at Chuckles going behind his back on the design around and the DE case is kidding themselves.
> 
> It looks like this is the complete opposite of May's hearing where Folsom seemed to be PO'ed at Tivo and Chu.


Do you realize that the court runs on questions of law, not on whether or not the judge is PO'd?

Judge Folsom has to decide based on the law ... not on who PO'd him the least.


----------



## Ergan's Toupe

James Long said:


> Do you realize that the court runs on questions of law, not on whether or not the judge is PO'd?
> 
> Judge Folsom has to decide based on the law ... not on who PO'd him the least.


Of course he is going to base his decision on law. But do you think he is going to give Charlie the benefit of the doubt after the way he has handled this?

I may be totally off base, but to PO a Federal Judge (and he is PO'd) cannot help your cause. If it was no big deal to Folsom why did he even bring it up?


----------



## jclewter79

I am going to wait and read the official transcript before I make decision on how PO'ed he is. I am sure it will be less biased than the account of a TIVO fanboy who cares enough to go to the hearing in person.


----------



## nobody99

jclewter79 said:


> less biased than the account of a TIVO fanboy


Or, maybe its an engaged investor who is licking his chops (like me).

I can't tell you how much it tickles me to know that a couple hundred million of DISH subscriber's payments will help my bank account.

So when you pay your bill, keep in mind that I've thanked you.


----------



## Bidderman9

Does anybody have any info about the Pace vs Toyota case? Folsom has referenced this over and over. He even referenced it again on 9/4 when talking about damages (more than just his usual scheduling references). It would be nice to hear a little more about that case to try to figure where he is headed.


----------



## Curtis52

Lest anyone be led astray... it's spelled "Paice".


----------



## jclewter79

nobody99 said:


> Or, maybe its an engaged investor who is licking his chops (like me).
> 
> I can't tell you how much it tickles me to know that a couple hundred million of DISH subscriber's payments will help my bank account.
> 
> So when you pay your bill, keep in mind that I've thanked you.


Your welcome, better savor the flavor because when the patents run out in a few years it is going to interesting to see what happens.


----------



## jclewter79

http://www.autobloggreen.com/2008/05/12/toyota-loses-hybrid-patent-appeal-case/

Here is a little info about paice v toyota


----------



## jclewter79

And more here under the July 1 heading
http://www.setexasrecord.com/news/2...ringement-cases-filed-in-u.s.-district-courts


----------



## Ergan's Toupe

_"Over the past two years, Qualcomm has been found to have infringed four Broadcom patents, abused the standards-setting process, and committed gross discovery misconduct, and now has been held in contempt of a court-ordered injunction," said David Rosmann, Broadcom's Vice President, Intellectual Property Litigation. *"Qualcomm's conduct demonstrates a startling lack of respect for its competitors' intellectual property, industry standards-setting processes, and the courts."*_

_"Citing the "egregiousness" of Qualcomm's conduct, the court ordered Qualcomm to pay Broadcom the gross profits Qualcomm has earned on its infringing QChat® products. Judge Selna further ordered Qualcomm to pay Broadcom's attorneys fees in connection with the contempt proceedings."_

When does Chu bring this up to Folsom? Hmmmm.... Gross profits? Attorneys fees?

He could argue that Tivo has industry standards -setting processes. Even Charlie would have to agree, after all E*'s box is "better than Tivo". He's been saying that for how long now?


----------



## Ergan's Toupe

jclewter79 said:


> Your welcome, better savor the flavor because when the patents run out in a few years it is going to interesting to see what happens.


I believe the patent runs till 2015. Have fun waiting.


----------



## jclewter79

Ergan's Toupe;1781736 said:


> I believe the patent runs till 2015. Have fun waiting.


I hope that Tivo has better luck making a consistant profit in the next 7 years than the did in first 10.


----------



## Ergan's Toupe

jclewter79 said:


> I hope that Tivo has better luck making a consistant profit in the next 7 years than the did in first 10.


I understand your concern, but you shouldn't worry.

Tivo made a profit the last two quarters. First time ever. No reason to think they won't be profitable the next 7 years with the DTV, Cox, Comcast, Australia, etc. added in.

And thats not even counting Charlie's money yet to be received, which could be anywhere from 100 to 600 million.

Then there is still Time Warner to sign (or sue), Ad revenue from stopwatch, Amazon etc.

I really don't see anything to worry about. 7 years is a long time.


----------



## peak_reception

Ergan's Toupe;1781736 said:


> I believe the patent runs till 2015. Have fun waiting.


 The way things are going we might have to wait that long for this case to be decided. :nono2:

I have a legal question for dgordo or ?

Is Judge Folsom limited to the arguments and cases cited by the litigants, or can he come up with his own arguments and/or cases in his ruling?

The reason I ask is because TiVo's arguments and cases seem to be so scattered and unfocused. Remember the "Mandate Rule" and the "Law of Case" which they argued a few months ago? Were they even mentioned again on 9-4? No one on this forum ever mentions them. Walker v. Birmingham was mentioned a few months ago, almost in passing, but now seems to be TiVo's main thrust.

EchoStar, by contrast, seems to be consistent and focused with KSM though they've touched on other cases too.

Does the quality of presentation make that much difference in a case like this where the judge seems well-versed on all angles?

Thanks in advance. Peak


----------



## jacmyoung

> Originally Posted by yourbeliefs
> Doesn't change the possibility that they could have been using it before illegally. Dish would look like REAL idiots if they were still using the (alleged) TiVo patents.


DISH is not using the Tivo technology any more, this much is without dispute, even Tivo admitted it, so the report was not entirely wrong, they were quoting what Tivo's lawyer was saying, it could just be that Tivo lawyer said something he is now regreting.

Again, even Tivo is not disputing that DISH's DVRs no longer use Tivo's DVR technology.


----------



## jacmyoung

> Originally Posted by harshness
> I think we're all pretty much on the same page here. DISH has offered an alternative to the ordered remedy (in a backhanded way) and the judge must consider whether it meets the goal AND whether the time between when the shutdown was ordered and the alternative remedy was distributed is significant.


The timing was a non-issue, there is also no dispute that DISH replaced the technology before the order was in force in 4/08.

The delay in the ruling is not much of a delay if you consider it usually takes courts weeks if not months to return a verdict on average. The problem here is we had those so called analysts and reporters that somehow thought they knew how the 9/4 should end by reading everyone's facial expression during that 5/30 status meeting.

As a result they concluded Tivo would get a favorable ruling on spot on 9/4. When that did not happen, everyone in the Tivo camp panicked.

Now the analysts are again trying to reassure the Tivo investors that based on the second round of reading the facial expressions of all parties in the 9/4 hearing, the judge will likely to rule in favor of Tivo after all, they just have to wait a little longer.

What was the saying? Fool me once, shame on you&#8230;


----------



## jacmyoung

But after reading some of those Tivo investors comments, I couldn't help but decided to offer a few of my observations, based on the actual above court transcript, but also take a few of the Tivo's investors comments into consideration.

The comments below contain a lot of legal terms, I will explain them in as easy terms as possible, but don't blame me if you are bored after reading it

The first judge's question that caught my attention was:

"10:17 ct/ contempt proceedings, extent of design around;"

In a contempt proceeding, the first thing the judge must do is to look at the differrences between the accused devices (the current DVRs with the new design around), and the adjudicated devices (the same DVRs but with the old software design), and determine if the differences are only colorable or not, if the differences are only colorable, DISH is in contempt, if the differences are more than colorable, DISH is not in contempt, they can continue to use those DVRs.

So the question the judge asked above was just that, to find out the "extent of the design around", i.e. to look at the differences between the design around and the old design, and to determine if the differences are big enough to be more than colorable.

The second judge's comment of interest was:

"10:24 Chu/ don’t need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;"

Here Tivo used a prior case by Judge Ward, it was a case in the 1960's, when several civil rights leaders including Martin Luther King Jr. was arrested for violating an order to prohibit them from protesting without getting multiple permits from several very hostile counties. Those activists knew they had no chance of be granted the permits, so they decided to ignore the requirement and protested anyway, and were cited for contempt.

First off it just showed how desparate TiVo was to cite that case, to think any judge would like to touch that case with a ten foot pole, and use that case alone to agree with TiVo?

It is no wonder the judge said: "are you conceding that this is perhaps not an issue;"

Because even if the judge cares to look at that case for guidance, the two are still different, in that case, the activists intentionally violated the order to prove a point, in this case DISH has said all along they obeyed the order.

Why? Because the court ordered them to disable "the DVR functions" not "any DVR functions", the DVR functions stated in the order must be refering to the design under the old software, and found to infringe, not any design around DVR functions, such as those DISH is using now, with the new software design around.

The third observation was after the following, which I touched on before:

"10:30 ct/ time period

10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
10:32 ct/ Echostar started implementing design around in October of ‘06;
10:32 Byrd/ responds, end of October;
10:32 ct/ damages;
10:33 Byrd/ totally unaffected;
10:33 ct/ you feel entitled if there is a contempt order or not;"

Here after Tivo said the damages must cover 9/9/06 to 4/18/08, the entire period when the injunction was stayed on appeal, the judge said but wait a minute, DISH's design around started in 10/06, basically asking why not only to cover 9/10 to 10/06?

To which Tivo lawyer said no, it was the end of 10/06, of course just an argumentitive response.

The Tivo lawyer later tried to correct that by saying no the design around should not matter, to which the judge asked, even if DISH is not in contempt because of the design around?

Of course if DISH is not in contempt of the design around starting from the end of 10/06, the damage period will have to be just that, the period when the design around was not in place yet, not all the way to 4/18/08.


----------



## jacmyoung

Now let me get into a few Tivo investors comments a little, keep in mind they have taken things out of context, and only cited conversations which they found appeared to go Tivo's way, but if you read on you will agree it was in fact the opposite.

One of the things Tivo investors cited was when the DISH's lawyer told the judge the "colorable difference" finding would be a shame, meaning the DISH lawyer thought the judge should find DISH no longer infringing on Tivo's patent.

That was of course stupid for the DISH's lawyer to say that, and the judge laughed at that rightfully.

In a contempt proceeding, the judge is not allowed to determine if the design around is infringing on the Tivo patent or not, rather if the design around is more than colorably different compared to the old DISH design.

By questioning what the judge can or cannot do, it not only showed DISH lawyer's lack of judgment as far as what the standard is, but also disrespect for the judge.

To which later the judge tried to teach DISH lawyer a civics lesson, by asking him, did you think I could still find DISH in contempt? To which the DISH lawyer thought about it for some time and finally answered, yes you could still find DISH in contempt. But if so please stay the sanctions while we appealed. The judge said not likely if there was a contempt, but sure you could appeal.

The Tivo investors seized on that Q/A to believe it meant to say DISH will be in contempt, but it is not true.

What the judge was doing was to tell the DISH lawyer, you need to respect my power, in my court room, not to question my decision, whatever that may be in the future, rather calling any one decision "a shame."

Of course the judge can find DISH in contempt, if he decides that the design around is only colorable. The judge was also telling the DISH lawyer, if you wanted to challenge my decision do so in the future, during your appeal, but not in my court room.

The good thing was the DISH lawyer in the end gave the correct answer, he said yes your honor it was possible you could still find DISH in contempt, if the design around was only colorable.

That answer at least showed the lawyer finally understood what he could or could not tell the judge how the judge might make his decision. A good saving grace for him, even though it took him a minute to come up with that correct answer.

So in conclusion, the judge has shown his clear understanding of the rules and precedures, and what he must do and what he may not do, in a contempt proceeding. I am confident that he will rule DISH not in contempt because the DISH design around is substantial, and more than colorably different compared to the old design.

The only problem is giving DISH lawyer's misstep, I am not too sure if he himself still has the confidence, because he showed arrogance and over-confidence, to me it was actually a sign of lack of confidence.

Again my disclaimer, the above is based on the very limited court transcript, once the full version becomes avaiable, I will try to do another analysis, it is entirely possible some of my interpretations may not be accurate.

I was going to wait but since those TiVo investors and their market analysts have been busy again interpreting the judge's facial expressions, I thought to put my two cents in as well.


----------



## Curtis52

jacmyoung said:


> DISH is not using the Tivo technology any more, this much is without dispute


If there is no dispute then Dish was wrong to file the Delaware lawsuit. Dish specifically said that there is a dispute in their rationale for the lawsuit. TiVo has not included "no dispute" as rationale for dismissal. I guess they both think there is a dispute.


----------



## Ergan's Toupe

jacmyoung said:


> DISH is not using the Tivo technology any more, this much is without dispute, even Tivo admitted it, so the report was not entirely wrong, they were quoting what Tivo's lawyer was saying, it could just be that Tivo lawyer said something he is now regreting.
> 
> You're kidding right? You don't really believe this, do you?
> 
> Again, even Tivo is not disputing that DISH's DVRs no longer use Tivo's DVR technology.


Tivo never said any such thing.

I'm sorry but it looks like a week TO hasn't changed your habit of making stuff up.


----------



## jacmyoung

Curtis52 said:


> If there is no dispute then Dish was wrong to file the Delaware lawsuit. Dish specifically said that there is a dispute in their rationale for the lawsuit.


At the the time of the DE filing the dispute was clear, but I was referring to the Rueters report in which it quoted the Tivo lawyer saying after the 9/4 hearing that DISH no longer uses Tivo patented technology, and also in Tivo's latest filing before 9/4 they finally acknowledged the new design around. The DISH DE case forced Tivo to admit that.

BTW, someone said something about the Paicer v. Toyota case, the judge mentioned that case after Tivo insisted DISH must pay the damages regardless of the design around.

To which the judge told them to take a look at his Paicer case. In that case Judge Folsom denied Paicer's request for a permanent injunction against Toyota, instead imposed a $5 per car Toyota had to pay Paicer for each new car they built that continued to use the Paicer's patented part.

So the judge was basically hinting, if Tivo you insisted, I could lift the injunction and impose a similar per box fee, like $.005/each?, was that the way Tivo you wished to go?


----------



## jacmyoung

Ergan's Toupe;1782164 said:


> Tivo never said any such thing.
> 
> I'm sorry but it looks like a week TO hasn't changed your habit of making stuff up.





> LOS ANGELES (Reuters) - A federal judge in Texas on Thursday delayed ruling until as late as November on whether EchoStar Corp owes TiVo Inc more damages for infringing on its "Time Warp" digital video recorder, or DVR, technology.
> 
> ADVERTISEMENT
> 
> Investors, who expected the ruling on Thursday, sent TiVo's shares down 16.5 percent, or $1.44, to $7.31.
> 
> U.S. District Judge David Folsom said he would try to rule by October 1 but failing that, would have to delay a finding until after the end of that month, according to attorneys who attended the hearing.
> 
> The damages stem from a 2006 jury finding that EchoStar illegally used the TiVo-invented feature, which allows users to scan through a television program while it is recording.
> 
> TiVo lawyers argued in U.S. district court in Marshall, Texas that it is owed $220 million in royalties and lost profits for the 18 months that the verdict was stayed to allow EchoStar to appeal. EchoStar has admitted to owing $16 million in additional damages.
> 
> An appeals court ordered the trial judge to determine whether and what amount of additional damages are owed TiVo.
> 
> TiVo also argued on Thursday for sanctions against EchoStar for allegedly failing to turn off the DVRs, as required in the injunction. EchoStar, instead, continued collecting subscription fees for the infringing DVRs and *replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.*


Read the above for yourself, I did not report it. Talk to that reporter.


----------



## Ergan's Toupe

jacmyoung said:


> Read the above for yourself, I did not report it. Talk to that reporter.


So you admit that it's bad editing?


----------



## Curtis52

jacmyoung said:


> At the the time of the DE filing the dispute was clear, but I was referring to the Rueters report in which it quoted the Tivo lawyer saying after the 9/4 hearing that DISH no longer uses Tivo patented technology, and also in Tivo's latest filing before 9/4 they finally acknowledged the new design around. The DISH DE case forced Tivo to admit that.


Can you quote where *TiVo says* (not a reporter) that Dish is not using TiVo technology?



> Judge Folsom denied Paicer's request for a permanent injunction against Toyota, instead imposed a $5 per car Toyota had to pay Paicer for each new car they built that continued to use the Paicer's patented part.


Wow. $25 has shrunk to $5. Must be the economy (or more false information).


----------



## Ergan's Toupe

Curtis52 said:


> Can you quote where *TiVo says* that Dish is not using TiVo technology?
> 
> Wow. $25 has shrunk to $5. Must be the economy (or false information).


Seriously, if this dude is gonna keep making stuff up as he goes along what is the whole point of this thread?


----------



## James Long

jacmyoung said:


> DISH is not using the Tivo technology any more, this much is without dispute, even Tivo admitted it ...


At most (based on an initial 2nd hand report from someone who was in the court room) Tivo admitted that there was new software. When that person made their first hand report the inference was gone. The Reuters reporter probably made the same initial error, he just managed to get it in print. Care to wait for a transcript?


> Again, even Tivo is not disputing that DISH's DVRs no longer use Tivo's DVR technology.


Source? Tivo is still seeking discovery to determine whether or not DISH is infringing. They have not ceded anything in their dispute.

Unless, of course, you were in the courtroom and offering your own report. 


jacmyoung said:


> But after reading some of those Tivo investors comments, I couldn't help but decided to offer a few of my observations, based on the actual above court transcript,


If you have the actual court transcript please post it ... or post a link to it. The rest of us would like to read it. What you are apparently calling a transcript is a "minute entry" ... just a brief record of the conversation. It isn't enough of a transcript to discuss in detail what was said.

I won't even touch your third post where you refute in detail the observations of a person who WAS in the courtroom when you were obviously not there.


----------



## James Long

Ergan's Toupe;1782207 said:


> Seriously, if this dude is gonna keep making stuff up as he goes along what is the whole point of this thread?


Be nice ....

This thread is for discussion of Tivo vs Echostar, not jacmyoung vs the world. We've had enough of personality based discussion in the other threads. Let's keep this one focused on the case ... please.

:backtotop


----------



## Ergan's Toupe

James Long said:


> Be nice ....
> 
> This thread is for discussion of Tivo vs Echostar, not jacmyoung vs the world. We've had enough of personality based discussion in the other threads. Let's keep this one focused on the case ... please.
> 
> :backtotop


I'm not trying to make this personal, James, but If someone, ANYONE, is going to make stuff up they should be called out on it. I don't care who it is.

As far as I'm concerned I like to read other opinions, I think that is the whole purpose of this board and this thread, but when people start presenting their opinions as fact someone should be able to correct them or call them out.


----------



## jacmyoung

Ergan's Toupe;1782207 said:


> Seriously, if this dude is gonna keep making stuff up as he goes along what is the whole point of this thread?


Sorry Curtis52, $0.025 per DVR box, I hope TiVo will be happy to take that deal.

Oh BTW, I think instead of attacking me, you folks should be busy writing to TiVo and ask:

1) What the @#$% were your lawyers talking about? Or

2) Have you called Rueters to retract that report yet?

Look attacking me helps you people very little, everyone was busy rediculing me for saying the modification (design around) must be looked at in a contempt proceeding, and what happened?

So next time you try to attack the message, rather be willing to face the case law, think about how successful you have been so far.


----------



## Curtis52

jacmyoung said:


> Sorry Curtis52, $0.025 per DVR box, I hope TiVo will be happy to take that deal.


TiVo passed the 4 function Supreme court Test. Toyota did not. Red herring.

Beyond that, Paice did not have a patent on a car. TiVo does have a patent on a DVR.


----------



## jacmyoung

TiVo admitted DISH's design around, in fact Rogers himself used the term "design around" in his latest commenting.

TiVo was arguing about whether the design around was only colorable or not in their latest filing going into the 9/4 hearing.

Reading just the skeleton of the 9/4 transcript you know everyone, DISH, TiVo and the judge was discussing the design around.

After the hearing we had a reputable report saying the TiVo lawyers told them DISH no longer used TiVo's patented technology.

If you still cannot connect those dots I am sorry.


----------



## Curtis52

jacmyoung said:


> If you still cannot connect those dots I am sorry.


You are indeed, sorry.


----------



## jacmyoung

Curtis52 said:


> TiVo passed the 4 function Supreme court Test. Toyota did not. Red herring.
> 
> Beyond that, Paice did not have a patent on a car. TiVo does have a patent on a DVR.


Irrelevant, judge was asking TiVo to look at his Paicer case to find how he worked out the damage deal, that was the point, since TiVo kept saying even if DISH's design around no longer uses its patent starting from 10/06, TiVo should still be entitled to the damages all the way to 4/18/08. To which the judge said well if so look at my Paicer case:

How about I lift the injunction and direct DISH to pay you a per box fee? You know I asked Toyota to pay $25 per car, how much do you think DISH should pay you per box?


----------



## Ergan's Toupe

jacmyoung said:


> After the hearing we had a reputable report saying the TiVo lawyers told them DISH no longer used TiVo's patented technology.


The fact that you insist on believing this is true speaks volumes. 

OT: Is there a way to put you on "ignore"? I think it's the best thing for this thread if I do.


----------



## jacmyoung

James Long said:


> ...I won't even touch your third post where you refute in detail the observations of a person who WAS in the courtroom when you were obviously not there.


I never refuted anything he said, only offered my interpretation of what he had described what was said by everyone in the court room.

Those are my interpretation based on the best case scenario that TiVo investor had cherry picked from the court room, I can't wait for the actual full transcript to come out.

BTW, my other post was quoting directly from the skeleton court transcript, word for word, unless you refute those words are true, then you must admit I can use those words from an actual court transcript. That is if those TiVo folks are entitled to use their own representative's impression from the court room. Again I never even questioned his actual quotes, rather pointed out how a different interpretation of such conversation can be.

It is called "on alternative" argument, again, even if I concede his quotes were true, he still will lose because his interpretations were wrong.

Unless you insist I cannot disagree.


----------



## Curtis52

jacmyoung said:


> Irrelevant


irrelevent? The whole reason for Folsom assigning an ongoing royalty in Paice was that an injunction was not appropriate because Toyota didn't pass the Supreme court's four factor test. TiVo passed the four factor test. That's why the injunction exists.


----------



## jacmyoung

Curtis52 said:


> irrelevent? The whole reason for Folsom assigning an ongoing royalty in Paice was that an injunction was not appropriate because Toyota didn't pass the Supreme court's four factor test. TiVo passed the four factor test. That's why the injunction exists.


Irrelevant in that you argued Toyota passed the test, DISH did not.

It is either this case or that case. $25/car, no injunction, or in this case an injunction and damages calculated accordingly, not as the Paicer case.

But if you disagree then tell me exactly how the Paicer case shoud be applied to this one on damage assessment? That DISH must pay $25/box and at the same time still disable all the DVRs, regardless the design around? Do you really think such unfair assessment will pass the appeals court?

Remember Toyota was allowed to continue to infringe, and in exchange was ordered to pay a higher fee, because there was no injunction to prohibit.

What we have today is DISH's design around can void a contempt. DISH has done more than Toyota ever did to avoid the continued infringement, and you expect the court should impose higher damages?


----------



## Curtis52

jacmyoung said:


> Irrelevant in that you argued Toyota passed the test, DISH did not.


Ummm.. Toyota/Paice failed the Supreme Court's four factor test. TiVo/Dish did not fail it. That's why there is an injunction against Dish instead of court-imposed ongoing royalties. I tried reading your post a little further but I couldn't understand it.


----------



## dgordo

peak_reception said:


> Is Judge Folsom limited to the arguments and cases cited by the litigants, or can he come up with his own arguments and/or cases in his ruling?


The judge should limt his decision to cases and arguments made in briefs and oral arguments.


----------



## jacmyoung

At the bare minimum you must agree that what the judge meant to use his Paicer case as an example, will be that a per box fee will be imposed on those 4 million DVRs, then after that they will be allowed to be used, just the same as in the Paicer case, Toyota was allowed to make and sell those cars, as long as they paid an one time $25 fee to Paicer per car, as long as those cars still infringed on the Paicer's patent.

Once Toyota began to make cars that no longer infringed, they did not have to pay Paicer that fee.


----------



## dgordo

Paice, not Paicer.


----------



## Curtis52

jacmyoung said:


> At the bare minimum you must agree that what the judge meant to use his Paicer case as an example, will be that a per box fee will be imposed


The judge isn't going to say "whoops, I've changed my mind about you guys passing the four factor test". None of the parties even argued about that. Not even at the appeal.


----------



## jacmyoung

To understand my above theory, you must be willing to consider in what context did the judge commented on his Paicer case.

It was not as if TiVo did not offer their own damage assessment, they had a $220 million figure. What happend was TiVo insisted even after the $220 million, DISH still must shut off those DVRs, regardless if the design around no longer uses TiVo's patented technology.

To which the judge said if so then look at my Paicer case, if I found the design around good enough, how about I lift the injunction and order DISH to pay you a per box fee, you know exactly what I did in the Paicer case.


----------



## jacmyoung

Curtis52 said:


> The judge isn't going to say "whoops, I've changed my mind about you guys passing the four factor test". None of the parties even argued about that. Not even at the appeal.


I understand what you mean why we have an injunction, and the Paice case did not have one.

If so TiVo should agree that after the damages, if the DISH design around is determined no longer using the TiVo patented technology, then you cannot insist they still be turned off. Can't have it both ways.

Which was exactly TiVo argued for, which the judge responded with his Paice case as an example, you wanted a different method? How about I lift the injunction and do the per box assessment, just like the Paice case.


----------



## James Long

jacmyoung said:


> I never refuted anything he said,


I agree ... nothing was refuted - primarily because you have no facts just impressions and interpretations.


> I can't wait for the actual full transcript to come out.


That has been noted ... being conservative until that transcript proves you wrong might be a good idea. Of course, there is no rule here against making yourself look bad. 


> BTW, my other post was quoting directly from the skeleton court transcript,


It seems that you misunderstand what you are reading ... a minute entry is not a transcript, skeleton or otherwise. It is the briefest of summaries (other than "they met, they talked, it lasted 49 minutes"). Hundreds of words of speculation based on a few scratches?

I know you can't wait ... but the full transcript would be a much better reference than calling a "minute entry" a "transcript". These are simple legal terms ... much like "Final Order".


jacmyoung said:


> What we have today is DISH's design around can void a contempt.


It didn't work for Dr Martin Luther King, Jr.

Dr. King (and others) violated an injunction based on a law that was eventually ruled unconstitutional. Yet their contempt verdict stands. Based on that Supreme Court ruling (the bossiest of boss courts) injunctions are sacred - and MUST be followed even if the injunction is wrong.

There are legal methods for challenging injunctions. DISH needs to follow them or expect trouble. Not everyone gets called into court on their crimes. Tivo isn't going to let DISH off easy.


----------



## Curtis52

jacmyoung said:


> I understand what you mean why we have an injunction, and the Paice case did not have one.
> 
> If so TiVo should agree that [deletia]


There is no "if so". There is only "is".


----------



## jacmyoung

James Long said:


> I agree ... nothing was refuted - primarily because you have no facts just impressions and interpretations.


I did not have all the facts, but I still had some facts from that initial court transcript, and if you just looked at it, you would have agreed that TiVo investor had conveniently left out so many and picked on only a few he liked to pick.

Beside as I said I actually accepted his impressions, only that I was able to offer a different interpretation of what he had described what was said in the court room.

You seem to think I could not have offered a different interpretation?

I am willing to wait for the full transcript to see how accurate my interpretation will be.



> That has been noted ... being conservative until that transcript proves you wrong might be a good idea. Of course, there is no rule here against making yourself look bad.


I can look as bad as it can be, but if DISH is not in contempt, I will be right

Did you feel you looked bad when you insisted the design around would not have been discussed on 9/4 because well "it was not on the court agenda?"



> It seems that you misunderstand what you are reading ... a minute entry is not a transcript, skeleton or otherwise. It is the briefest of summaries (other than "they met, they talked, it lasted 49 minutes"). Hundreds of words of speculation based on a few scratches?


That I agree, I hope you have also read my disclaimer?



> I know you can't wait ... but the full transcript would be a much better reference than calling a "minute entry" a "transcript". These are simple legal terms ... much like "Final Order".


Then the same can be said about using a totally biased partial impression of a TiVo investor's notes?



> It didn't work for Dr Martin Luther King, Jr.
> 
> Dr. King (and others) violated an injunction based on a law that was eventually ruled unconstitutional. Yet their contempt verdict stands. Based on that Supreme Court ruling (the bossiest of boss courts) injunctions are sacred - and MUST be followed even if the injunction is wrong.
> 
> There are legal methods for challenging injunctions. DISH needs to follow them or expect trouble. Not everyone gets called into court on their crimes. Tivo isn't going to let DISH off easy.


But you failed to read on, the judge reminded that idiot TiVo lawyer who tried to use King's case, asked him did you then concede the two [cases] were not equal?

As I said in this case whether DISH has obeyed the order or not is not determined yet, based on DISH's interpretation of the order, they have obeyed the order. The activists in the King's case intentionally disobeyed the order to prove a point.

Not equal, as pointed out by the judge.


----------



## jacmyoung

Curtis52 said:


> There is no "if so". There is only "is".


Ok then why don't you tell me what is your guess what the judge meant? Based on his Paice case, how much should the enhanced demages be for those 4 million DVRs?

TiVo said $220 million, DISH said $16 million, it has to be a number in between right? Give me your guess based on Paice.


----------



## Curtis52

jacmyoung said:


> Ok then why don't you tell me what is your guess what the judge meant?


I'll have to wait until I have seen something the judge said.


----------



## Ergan's Toupe

jacmyoung said:


> the judge reminded that idiot TiVo lawyer


Which "idiot Tivo lawyer" exactly are you talking about?


----------



## Mainer_ayah

James Long said:


> :sure: Redactions ... (one stinking letter).
> 
> Or as it was put for the transcripts from May 30th:FYI: The transcript from May 30th is now available via PACER ... not sure if it was released today or not. I don't see any redactions (or retractions) in it. Thanks to Mainer for retrieving the transcripts posted three months ago.
> 
> BTW: May 30th transcripts were signed off by the transcriber on June 2nd, the next business day.


FYI,

The transcript can be purchased directly from the court reporter. She is a nice lady that I've talked to several times, so if you contact her be nice. The fee depends on the length of the document. So, she won't know the fee until she is finished with the transcription. The May 30th conference, which was shorter, took place on a Friday, and She emailed me the document on Tuesday. I suspect this one will be available on Tues or Wed this coming week. If you want to wait 90 days, the transcript will be available on Pacer for the normal, much lower. Pacer fee.

By the way, I want to thank you all for extending your comments of trust regarding my posts last week. I was summarizing another individuals comments to me minutes after the conference ended. Literally from the courthouse steps (the same steps that Charlie will be begging for a settlement on in the near future). That individual has a financial stake in TiVo as well. So perhaps you should discount all of these comments, that you all have so liberally quoted from here, as biased bull crap.


----------



## Mainer_ayah

dgordo said:


> I remember downloading from PACER around that time because I remember I was in a hotel room in LA at the time I downloaded the doc from PACER.


Then you did not download it from the Eastern TX Pacer site. Pacer would have made the document available on Aug 30th at the earliest per the 90 day rule. The document was, however, included as an exhibit in one of TiVos filings in the DE case.

You guys get all this stuff confused way too easily.


----------



## jacmyoung

Mainer_ayah said:


> ...as biased bull crap.


No just biased, and BTW in refernce to your comment "you all", there are a whole bunch of you here, not us. If you noticed.


----------



## jacmyoung

Curtis52 said:


> I'll have to wait until I have seen something the judge said.


As James had said, I usually do not wait

My guess is if the judge does go the Paice route, the damages will be about $5 to $10 per box, that is about $20 to $40 million for 4 million DVRs.

Whether he will lift the injunction is a wild wild guess, but DISH will not be in contempt.

Where is the fun if you wait for all to come out then try to "predict"?


----------



## jacmyoung

Oh but we all have predicted didn't we?

Didn't many of you predicted the design around would not be discussecd on 9/4?

Didn't many of you predicted TiVo would be able to file one or two more motions on or right after 9/4?

Even though close to 9/4 many of you changed your prediction, but I also remember many of you initially predicted DISH would be found in contempt on 9/4.


----------



## Mainer_ayah

James Long said:


> No ... it was a post on an investor chat website quoting an observer in the courtroom. The actual report posted later by that observer directly on another investor chat website doesn't contain that inference.
> 
> I agree that the full transcript should clear it up. Be patient!


No, it was a Reuters story, written by a reporter that obviously was not in the courtroom (unless he could confuse the Texarkana and Marshall courthouses), based on who knows what (if it was the stenographers minutes, then he truly is negligent)


----------



## jacmyoung

Mainer_ayah said:


> No, it was a Reuters story, written by a reporter that obviously was not in the courtroom (unless he could confuse the Texarkana and Marshall courthouses), based on who knows what (if it was the stenographers minutes, then he truly is negligent)


Which was exactly what I said, you should all call TiVo to have Reuters retract that report.


----------



## Mainer_ayah

Ergan's Toupe;1780443 said:


> Is it safe to assume they mean "SEC" not "FCC"? :grin:


No, they meant SEC. They listed the fact that they were working on modifying their DVR software in the back of a couple of reports submitted to the SEC.


----------



## Mainer_ayah

nobody99 said:


> Or, maybe its an engaged investor who is licking his chops (like me).
> 
> I can't tell you how much it tickles me to know that a couple hundred million of DISH subscriber's payments will help my bank account.
> 
> So when you pay your bill, keep in mind that I've thanked you.


I second that!


----------



## Mainer_ayah

jacmyoung said:


> DISH is not using the Tivo technology any more, this much is without dispute, even Tivo admitted it, so the report was not entirely wrong, they were quoting what Tivo's lawyer was saying, it could just be that Tivo lawyer said something he is now regreting.
> 
> Again, even Tivo is not disputing that DISH's DVRs no longer use Tivo's DVR technology.


That's nothing but wishful thinking on the part of a biased E* user that is fearing his DVR will be bricked soon.


----------



## James Long

jacmyoung said:


> I did not have all the facts, but I still had some facts from that initial court transcript, and if you just looked at it, you would have agreed that TiVo investor had conveniently left out so many and picked on only a few he liked to pick.


Perhaps you misunderstood. Mike wasn't using the "Minute Entry" (still not a transcript) ... he was speaking solely from personal experience.


> I can look as bad as it can be, but if DISH is not in contempt, I will be right


Don't worry. You can be wrong regardless of if DISH is found in contempt or not.  


> Did you feel you looked bad when you insisted the design around would not have been discussed on 9/4 because well "it was not on the court agenda?"


Without a transcript there is no saying what was discussed. And I have warned you before (poster to poster) about assuming you speak for me in ANY manner. You probably misunderstood or are intentionally misconstruing whatever you read before. 

DISH's alleged design around isn't the core of the decision ... DISH's failure to follow the injunction is the core of the decision. Anything else is just fluff.


----------



## Mainer_ayah

jacmyoung said:


> At the the time of the DE filing the dispute was clear, but I was referring to the Rueters report in which it quoted the Tivo lawyer saying after the 9/4 hearing that DISH no longer uses Tivo patented technology, and also in Tivo's latest filing before 9/4 they finally acknowledged the new design around. The DISH DE case forced Tivo to admit that.


Are you referring to the report where the "reporter" says the hearing was in Marshall, TX?


----------



## Mainer_ayah

jacmyoung said:


> TiVo admitted DISH's design around, in fact Rogers himself used the term "design around" in his latest commenting.
> 
> TiVo was arguing about whether the design around was only colorable or not in their latest filing going into the 9/4 hearing.
> 
> Reading just the skeleton of the 9/4 transcript you know everyone, DISH, TiVo and the judge was discussing the design around.
> 
> After the hearing we had a reputable report saying the TiVo lawyers told them DISH no longer used TiVo's patented technology.
> 
> If you still cannot connect those dots I am sorry.


How on earth can you say the report was reputable when the reporter didn't even know what city it was held in? Do you really think he was there?


----------



## scooper

Mainer_ayah said:


> That's nothing but wishful thinking on the part of a biased E* user that is fearing his DVR will be bricked soon.


They will not be "bricked" (i.e. useful only for doorstops). The DVR function disabled - we still have to see, but even if that gets ordered to happen - Echostar has said the satellite receiver part of the box will still be useful. So, Not "Bricked" in any case...


----------



## phrelin

The most surprising thing about the 9/4 hearing was that the judge didn't.

Judge that is. No ruling.

There are three possible reasons I can think of:

1. He's busy with other things and would like this case to go away because these morons settled.

2. He's very uncomfortable with his options.

3. All of the above.


----------



## Greg Bimson

I am limiting myself to very few counter-arguments to the one that interprets everything in one direction.


jacmyoung said:


> To understand my above theory, you must be willing to consider in what context did the judge commented on his Paicer case.
> 
> It was not as if TiVo did not offer their own damage assessment, they had a $220 million figure. What happend was TiVo insisted even after the $220 million, DISH still must shut off those DVRs, regardless if the design around no longer uses TiVo's patented technology.


The damages motion is for a specific period of time. Originally, the damages motion should have only included amounts up until the time the injunction went into effect. From TiVo Investor Board, Mike's original transcript, with the official minutes littered within, and the counterpoint in *RED*:


> *10:28 Byrd/ damages motion;*
> 
> Tivo attorney 'Christine_______, comes up to explain damages.
> 
> *10:30 ct/ time period
> 10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
> 10:32 ct/ Echostar started implementing design around in October of '06;
> 10:32 Byrd/ responds, end of October;
> 10:32 ct/ damages;
> 10:33 Byrd/ totally unaffected;
> 10:33 ct/ you feel entitled if there is a contempt order or not;
> 10:33 Byrd/ continues with argument;*
> 
> *3 categories of damages. up to 4-08, tivo wants $168,660,114. If E* is in contempt they want $220,349,154. *
> 
> Tivo claims new post verdict royalty rate should be $2.25 per box, based on, Amando V. Microsoft.
> says court must come up with new rate and not rely on jury finding of $1.25 per box.
> 
> *10:36 McElhinny/ responds;
> 10:37 ct/ damages under that;
> 10:37 McElhinny/ responds;
> 10:37 ct/ that is the very minimum
> 10:38 McElhinny/ no;*
> 
> E* says mandate of Appelant court says HJF should find what harm was done to Tivo during stay. E* states it owes $16,400,809. HJF states that seems to be a "very minimal amount" owed.
> 
> E* if there are extra damages, above $16mil, more proceedings necessary.
> 
> HJF laughs at that idea. asks E* if they have read, Pace V. Toyota?? E* said they had.
> HJF to E*, "You have to conceed $16mil, is very minimal." E* conceeds.
> 
> E* won't stipulate HJF can retroactively modify royalty rate.
> E* argues cheap $1,25 per box works good. goes into risk analysis explanation whats to possibly introduce to the record
> HJF states, " good luck with that."
> Tivo states E* likes the old $1.25 rate because they have already raised their rate to $2,25 to cover costs.


DISH/SATS is simply giving the amount of infringement until they changed the software.

TiVo is asking for the $168 million amount until the injunction went into effect on 18 April, and then if DISH/SATS is found in contempt from then, the amount goes to $220 million. This does not include the $97 million amount already to be given from the time the suit was filed until August, 2006.


----------



## James Long

Mainer_ayah said:


> No, it was a Reuters story, written by a reporter that obviously was not in the courtroom (unless he could confuse the Texarkana and Marshall courthouses), based on who knows what (if it was the stenographers minutes, then he truly is negligent)


For all we know Reuters could have used the reports from The Motley Fool for their reference ... which may explain why the article supported what was reported. 

Reuters is not on trial here, nor is Mike nor you nor jacmyoung. The problem of speaking without knowledge doesn't help the situation. I appreciate the posts of those with knowledge (despite source) that isn't derived solely from speculation.

BTW: The only prediction that has come true is that September 4th won't be the end. 



Mainer_ayah said:


> Ergan's Toupe;1780443 said:
> 
> 
> 
> Is it safe to assume they mean "SEC" not "FCC"? :grin:
> 
> 
> 
> No, they meant SEC. They listed the fact that they were working on modifying their DVR software in the back of a couple of reports submitted to the SEC.
Click to expand...

Then the answer is "Yes, they meant SEC." The report ET was quoting said FCC reports.


----------



## Mainer_ayah

jacmyoung said:


> Ok then why don't you tell me what is your guess what the judge meant? Based on his Paice case, how much should the enhanced demages be for those 4 million DVRs?
> 
> TiVo said $220 million, DISH said $16 million, it has to be a number in between right? Give me your guess based on Paice.


And after the 16 million was presented the judge asked Mcilhiny if he didn't think that number was overly minimal. He even got him to admit it was. Just like he got him to admit that regardless of any workaround, his client could in fact be held in contempt.


----------



## Greg Bimson

jacmyoung said:


> After the hearing we had a reputable report saying the TiVo lawyers told them DISH no longer used TiVo's patented technology.


Yet the court minutes already state that TiVo would be coming back for more contempt motions:


> *10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> 10:27 ct/ go forward with second motion;*
> 
> Tivo back up;
> HJF Do you agree I can go forward w/contempt w/out discovery?
> 
> Tivo disagree, 2 issues. 1st is was injunction on it's face violated. 2nd if it was, *we need discovery on "new" products.* if you find contempt, we need to come back for further remedy.


By "new" products, I assume that to mean the 622/722, 612, etc.

That was why DISH/SATS counsel McElhinny had a ton to say at the end of the hearing:


> *10:47 ct/ will give it all the attention I can;
> 10:47 Chu/ other hrg if necessary to have it;
> 10:48 McElhinny/ huge pending discovery fight; and would appreciate if ct would look if this is the way you want to go;
> 10:48 ct/ will reserve how to go forward until I do a little more looking;
> 10:49 adjourned;*
> 
> HJF "cases like this never end." "I know the parties wish I can have an order out in the next couple days, but i've got some large cases coming up before I go to Marshall in October. I'll work on it when I can when I have time." " may have it out by October 1st."
> 
> E* States Huge discovery ahead if they are found in contempt and if discovery is allowed on new products.
> 
> HJF "reserves" to look into further hearings if he finds it necessary.
> END of hearing.


----------



## Mainer_ayah

scooper said:


> They will not be "bricked" (i.e. useful only for doorstops). The DVR function disabled - we still have to see, but even if that gets ordered to happen - Echostar has said the satellite receiver part of the box will still be useful. So, Not "Bricked" in any case...


Oh, ok. I hope all of the Dish users are happy with their new sat receivers.


----------



## Mainer_ayah

phrelin said:


> The most surprising thing about the 9/4 hearing was that the judge didn't.
> 
> Judge that is. No ruling.
> 
> There are three possible reasons I can think of:
> 
> 1. He's busy with other things and would like this case to go away because these morons settled.
> 
> 2. He's very uncomfortable with his options.
> 
> 3. All of the above.


How about that maybe he wanted to give the verbal arguments their due consideration. Anyone who expected a decision on the 4th is very foolish in their thinking.


----------



## Curtis52

Mainer_ayah said:


> Just like he got him to admit that regardless of any workaround, his client could in fact be held in contempt.


Upon hearing such an inane question, I can just imagine McElhinny thinking: "Well DUH !!! Why do you think we are here? Are you senile or what?"


----------



## phrelin

Mainer_ayah said:


> How about that maybe he wanted to give the verbal arguments their due consideration. Anyone who expected a decision on the 4th is very foolish in their thinking.


I would agree except I don't see a thing new or substantive presented in the hearing, at least in what information we have. My perception from the information we have is that he has an opinion, but would rather not share it.


----------



## Mainer_ayah

James Long said:


> Reuters is not on trial here, nor is Mike nor you nor jacmyoung. The problem of speaking without knowledge doesn't help the situation. I appreciate the posts of those with knowledge (despite source) that isn't derived solely from speculation.


No, but in this particular situation the veracity of the source jacmyoung is citing when he insists that TiVo made certain comments and presents himself like he sees that as fact is at question, or "on trial" as you say. This position of his simply goes to the fact that he truly does makes stuff up, as has been said, by others, before.


----------



## Mainer_ayah

phrelin said:


> I would agree except I don't see a thing new or substantive presented in the hearing, at least in what information we have. My perception from the information we have is that he has an opinion, but would rather not share it.


An off the cuff decision would have been a magnet for an appeal.
The judge is being careful to show that everyone is getting fair treatment here.


----------



## James Long

Mainer_ayah said:


> No, but in this particular situation the veracity of the source jacmyoung is citing when he insists that TiVo made certain comments and presents himself like he sees that as fact is at question, or "on trial" as you say. This position of his simply goes to the fact that he truly does makes stuff up, as has been said, by others, before.


What is interesting is how hard you're attacking Reuters for referring to the case as being in Marshall (where it was filed) instead of Texarkana (Judge Folsom's courtroom). Meanwhile Reuters is being praised for backing up Mike's in court report. So either Reuters was there and made a minor error or were not there and cannot be relied on to support Mike's impressions.

I believe the writer was there and made a simple error that if corrected would change one word in the story. Not anything critical. If you want to throw out the entire report because of one word feel free to provide a more reputable source. Preferably the transcript from the court.


----------



## James Long

Mainer_ayah said:


> An off the cuff decision would have been a magnet for an appeal.
> The judge is being careful to show that everyone is getting fair treatment here.


Pulling in a long time SCOTUS decision involving well known personalities doesn't help. If Judge Folsom decides to deny the Motion for Contempt he has to do so in a way that avoids the precedent case or that frames this injunction as so much different than the prior injunction. That prior ruling gives a lot of strength to the authority of the court - even when the court is operating in an unconstitutional manner the court maintains authority.

And yet over time many have disobeyed injunctions and not been tagged with that SCOTUS reference. Their injunctions have been reevaluated to decide if they were fair or not or still applied. Somehow the courts got past Walker v. Birmingham and ruled based on the underlying right vs wrong - not based on who PO'd the courts by not doing as told.

There are several issues pending ... it would be better for Judge Folsom to issue one ruling covering them all. Even if Judge Folsom had an instant answer on the contempt issue he has other things to address ... and no deadline other than his own process.


----------



## scooper

Mainer_ayah said:


> Oh, ok. I hope all of the Dish users are happy with their new sat receivers.


I can guarantee you that at least one will NOT. At least, not until a working replacement is in his hands.


----------



## jacmyoung

Greg Bimson said:


> Yet the court minutes already state that TiVo would be coming back for more contempt motions:By "new" products, I assume that to mean the 622/722, 612, etc.
> 
> That was why DISH/SATS counsel McElhinny had a ton to say at the end of the hearing:


Of course if DISH is in contempt, TiVo be able to come back for a lot more.

You misunderstood what I said, many of you predicted TiVo could file another motion or two on 9/4 or right after, but that prediction failed because depending on the judge's ruling sometime by 10/1 or even later, he will decide what to go forward.

So nobody does anything before the ruling.


----------



## jacmyoung

Mainer_ayah said:


> That's nothing but wishful thinking on the part of a biased E* user that is fearing his DVR will be bricked soon.


You have no idea what I fear for. I would hope my DVRs are disabled so DISH will have to replace them with the newer models, unfortunately I am afraid it will not happen.


----------



## jacmyoung

James Long said:


> Perhaps you misunderstood. Mike wasn't using the "Minute Entry" (still not a transcript) ... he was speaking solely from personal experience.


You perhaps misunderstood what I said, Mike appeared to have slept through the whole hearing, only conveniently woke up on two occasions when he thought judge was making fun at DISH.



> Don't worry. You can be wrong regardless of if DISH is found in contempt or not.
> Without a transcript there is no saying what was discussed. And I have warned you before (poster to poster) about assuming you speak for me in ANY manner. You probably misunderstood or are intentionally misconstruing whatever you read before.


Didn't you predict TiVo better be prepared to have motions ready on 9/4 so they could do a better job this time, did TiVo get that chance? I can go back to quote what you predicted.



> DISH's alleged design around isn't the core of the decision ... DISH's failure to follow the injunction is the core of the decision. Anything else is just fluff.


Didn't you just fall into the same argument you have so wanted me not to do? Making a guess before the full transcript is available?


----------



## jacmyoung

Mainer_ayah said:


> How on earth can you say the report was reputable when the reporter didn't even know what city it was held in? Do you really think he was there?


Stop asking me that question, have I not told you? Call TiVo and have them retract that report.

The report is out there saying those idiot TiVo lawyers said DISH is no longer using the TiVo patented technology, don't you think TiVo needs to get the record straight?

Reuters is a reputable news outlet, just because you don't like what the reporter said does not make them not so. You have no idea yourself whether the reporter had talked to those lawyers or not, do you?

Again, if TiVo believes it was a misquote, have it retracted, very simple. Why let such an important misquote float around? More importantly why assume it is wrong just because you do not like the sound of it?


----------



## jacmyoung

Mainer_ayah said:


> And after the 16 million was presented the judge asked Mcilhiny if he didn't think that number was overly minimal. He even got him to admit it was. Just like he got him to admit that regardless of any workaround, his client could in fact be held in contempt.


Of course it was a minimum, the same as TiVo's number was the maximum, that is always how things work, the actual number will be some where in between 16 and 220. Making that a winning point just showed how desperate some TiVo fans are.


----------



## jacmyoung

Greg Bimson said:


> I am limiting myself to very few counter-arguments to the one that interprets everything in one direction.The damages motion is for a specific period of time. Originally, the damages motion should have only included amounts up until the time the injunction went into effect. From TiVo Investor Board, Mike's original transcript, with the official minutes littered within, and the counterpoint in *RED*ISH/SATS is simply giving the amount of infringement until they changed the software.
> 
> TiVo is asking for the $168 million amount until the injunction went into effect on 18 April, and then if DISH/SATS is found in contempt from then, the amount goes to $220 million. This does not include the $97 million amount already to be given from the time the suit was filed until August, 2006.


Of course the 220 is in addition to the 97.

But remember what I have said, TiVo so far has insisted even if DISH is not in contempt, the damages still will have to be assessed up to 4/08, completely wrong.

If DISH's new design around is good enough to avoid a contempt, the damages will be assessed up to the time the design around was implemented, not up to 4/08.

Even the judge was surprised what TiVo said and asked, you mean even if I found contempt or not?

I never argued what should be the old rate or the new rate, just that TiVo used no logic when they said the damages must be assessed up to 4/08 even if DISH is not in contempt.


----------



## Mainer_ayah

James Long said:


> What is interesting is how hard you're attacking Reuters for referring to the case as being in Marshall (where it was filed) instead of Texarkana (Judge Folsom's courtroom). Meanwhile Reuters is being praised for backing up Mike's in court report. So either Reuters was there and made a minor error or were not there and cannot be relied on to support Mike's impressions.
> 
> I believe the writer was there and made a simple error that if corrected would change one word in the story. Not anything critical. If you want to throw out the entire report because of one word feel free to provide a more reputable source. Preferably the transcript from the court.


From the article:
EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.

Mikes comment from his post number 35819 on InvestorVillage:
"
what they reporters failed to report is Tivo/Chu, said [E* claims to have ] "replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said."

Tivo attorneys never said that E* had achieved a work around/design of their patents!!!!!!! Tivo steadfaster believes and states that the software change, no matter how it was done, violates their patents!!!!!"

So where are these two positions similar, and who is praising reuters? Transforming bloggers into reporters to cover events such as this obviously produce such inaccuracies.


----------



## jacmyoung

Curtis52 said:


> Upon hearing such an inane question, I can just imagine McElhinny thinking: "Well DUH !!! Why do you think we are here? Are you senile or what?"


He answered correctly, of course DISH can be found in contempt even if there is a design around, but only if the design around is merely colorable.

If the design around is more than colorable, DISH will not be in contempt.


----------



## Herdfan

phrelin said:


> There are three possible reasons I can think of:
> 
> 1. He's busy with other things and would like this case to go away because these morons settled.
> 
> 2. He's very uncomfortable with his options.


Could be very true. Judges are people too and they know their decisions affect other people and not just those in his court. He could very well want to rule against DISH, but as a person, doesn't want to kill 4 million other peoples DVR's.

So he shows disdain for E* in court hoping it will "encourage" them to settle and he won't have to make such a ruling.


----------



## jacmyoung

Mainer_ayah said:


> From the article:
> EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.
> 
> Mikes comment from his post number 35819 on InvestorVillage:
> "
> what they reporters failed to report is Tivo/Chu, said [E* claims to have ] "replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said."
> 
> Tivo attorneys never said that E* had achieved a work around/design of their patents!!!!!!! Tivo steadfaster believes and states that the software change, no matter how it was done, violates their patents!!!!!"
> 
> So where are these two positions similar, and who is praising reuters? Transforming bloggers into reporters to cover events such as this obviously produce such inaccuracies.


You are, by the use of "[]". Again why not asking Reuters to retract that statement? If you are so convinced they so misrepresented TiVo?

BTW, for Mr. Chu to say: "Tivo steadfaster believes and states that the software change, no matter how it was done, violates their patents!!!!!" is the most rediculous thing I have ever heard.

You mean there is no need for the court even to look at the new software, just any software will always violate this TiVo's patent? Do you know how fast TiVo can lose if this is the only argument they have?


----------



## dgordo

Anyone who thinks anything a court does will happen quickly is almost always mistaken. 

I know, apples to oranges, but if you are arrested in Chicago for a felony and request a trial, it will be about 4 years before the trial begins.


----------



## dgordo

jacmyoung said:


> You are, by the use of "[]". Again why not asking Reuters to retract that statement? If you are so convinced they so misrepresented TiVo?
> 
> BTW, for Mr. Chu to say: "Tivo steadfaster believes and states that the software change, no matter how it was done, violates their patents!!!!!" is the most rediculous thing I have ever heard.
> 
> You mean there is no need for the court even to look at the new software, just any software will always violate this TiVo's patent? Do you know how fast TiVo can lose if this is the only argument they have?


Why dont you email the reporter and ask him if he was there?
Problem solved.


----------



## jacmyoung

Herdfan said:


> Could be very true. Judges are people too and they know their decisions affect other people and not just those in his court. He could very well want to rule against DISH, but as a person, doesn't want to kill 4 million other peoples DVR's.
> 
> So he shows disdain for E* in court hoping it will "encourage" them to settle and he won't have to make such a ruling.


That I agree a possibility, which was why I have always said it all depends on if Charlie is "studbborn" enough to go all the way.

When the judge mentioned his Paice case, there is also a hint of such thought, because in the Paice case he denied the permanent injunction on that ground. So he could be hinting there is a similar element here too, about shutting off 4 million DVRs at people's homes, especially if DISH is no longer infirnging on the patent with the design around.

If so how can you justify such punishment? This is what the judge will have to decide.


----------



## jacmyoung

dgordo said:


> Why dont you email the reporter and ask him if he was there?
> Problem solved.


He was there, did you read the above?


----------



## Mainer_ayah

jacmyoung said:


> Of course it was a minimum, the same as TiVo's number was the maximum, that is always how things work, the actual number will be some where in between 16 and 220. Making that a winning point just showed how desperate some TiVo fans are.


I could agree with you had the judge commented on the size of the TiVo number. But he didn't. By the way, the word was minimal, not minimum.

I see you are having problems digesting the simple reality that Mcilhiny and company failed, yet again, to fool the court. Obviously the judge, through his contrasting interactions with the clients' counsel is sending his last message on where he stands in this case. Dish, in a word, is doomed.

Take a Tums, or a Rolaids, and deal with it.


----------



## jacmyoung

dgordo said:


> Anyone who thinks anything a court does will happen quickly is almost always mistaken.
> 
> I know, apples to oranges, but if you are arrested in Chicago for a felony and request a trial, it will be about 4 years before the trial begins.


Why didn't you say so when your TiVo folks were predicting victory on 5/30, then 9/4? You were posting all that time, why say so only after the fact?

As a lawyer, my guess is it would be nice had you warned them then.

Instead it was me who had been telling them there would not be an on spot yes/no contempt ruling, that for all the yes/no contempt rulings I have read, they went on for 10 to 20 pages, took a lot of research and making sure the argument were sound and follow the standards, no way could the judges prepare them in a week or two, especially if they have other cases.


----------



## Mainer_ayah

jacmyoung said:


> You are, by the use of "[]". Again why not asking Reuters to retract that statement? If you are so convinced they so misrepresented TiVo?
> 
> BTW, for Mr. Chu to say: "Tivo steadfaster believes and states that the software change, no matter how it was done, violates their patents!!!!!" is the most rediculous thing I have ever heard.
> 
> You mean there is no need for the court even to look at the new software, just any software will always violate this TiVo's patent? Do you know how fast TiVo can lose if this is the only argument they have?


Obviously, you feel that if an individual makes a spelling mistake you must discount his whole account of the event. Thats being a bit closed minded, yes? Mike is not a professional reporter, or obviously a spelling bee champ. But you (or at least we) can get a good feel for the hearing through his account of it.

By the way ridiculous is not spelled rediculous.


----------



## jacmyoung

Mainer_ayah said:


> I could agree with you had the judge commented on the size of the TiVo number. But he didn't. By the way, the word was minimal, not minimum.
> 
> I see you are having problems digesting the simple reality that Mcilhiny and company failed, yet again, to fool the court. Obviously the judge, through his contrasting interactions with the clients' counsel is sending his last message on where he stands in this case. Dish, in a word, is doomed.
> 
> Take a Tums, or a Rolaids, and deal with it.


Yet again making an conclusion without seeing the full transcript.

There is a big difference between a true TiVo DVR lover, and a true TiVo investor.

You need to wonder why Mike, as a investor, failed to report on all other conversations but only those few he really liked?

The court skeleton transcript contained far more minutes than what Mike was willing to disclose, that alone can tell a lot.

So yes I agree let's wait to see the full conversation.


----------



## jacmyoung

Mainer_ayah said:


> Obviously, you feel that if an individual makes a spelling mistake you must discount his whole account of the event. Thats being a bit closed minded, yes? Mike is not a professional reporter, or obviously a spelling bee champ. But you (or at least we) can get a good feel for the hearing through his account of it.
> 
> By the way ridiculous is not spelled rediculous.


No that was not a spelling mistake, when you use "[]" it was trying to put words in Mr. Chu's mouth, sometimes correctly other times not so.

BTW, didn't you just try to correct my spelling of the word "minimal"? Who was trying to use misspelling to discredit people again?

I have never questioned anyone's spelling before, nor in the above post, maybe the reason you thought so was because you like to use such tactic yourself, as I have pointed out above? So you assumed others do the same?


----------



## Curtis52

Herdfan said:


> Could be very true. Judges are people too and they know their decisions affect other people and not just those in his court. He could very well want to rule against DISH, but as a person, doesn't want to kill 4 million other peoples DVR's.


On the other hand, he could be proud of a decision that strengthens the law. Maybe he believes what he does makes a difference. A refreshing change from cynical officials.
Judge Folsom:


> Lastly, *the public interest would not be disserved by a permanent injunction*. The public
> has an interest in maintaining a strong patent system. *This interest is served by enforcing an
> adequate remedy for patent infringement* --- in this case, a permanent injunction. The infringing
> products are not related to any issue of public health or any other equally key interest; they are
> used for entertainment. *The public does not have a greater interest in allowing Defendants'
> customers' to continue to use their infringing DVRs*.


----------



## jacmyoung

Curtis52 said:


> On the other hand, he could be proud of a decision that strengthens the law. Maybe he believes what he does makes a difference. A refreshing change from cynical officials.


Of course he could but he will have done so as a refreshing change from himself, as indicated in his Paice decision, not from cynical officials.


----------



## Ergan's Toupe

jacmyoung said:


> Why didn't you say so when your TiVo folks were predicting victory on 5/30, then 9/4? You were posting all that time, why say so only after the fact?
> 
> As a lawyer, my guess is it would be nice had you warned them then.


So you are a lawyer? :eek2:


----------



## peak_reception

James Long said:


> What is interesting is how hard you're attacking Reuters for referring to the case as being in Marshall (where it was filed) instead of Texarkana (Judge Folsom's courtroom).


 If the reporter was in Texarkana don't you think she would know that?? Did she just imagine he was in Marshall when interviewing people? No, she was simply not there in person. She might've interviewed some people over the phone (?). She might've gone by what she read on the internet (?). Only the reporter knows for sure. The one thing that's certain is that she was not there in person! Nor did she claim to be.


----------



## peak_reception

> *LOS ANGELES *(Reuters) - A federal judge in Texas on Thursday delayed ruling until as late as November on whether EchoStar Corp owes TiVo Inc more damages for infringing on its "Time Warp" digital video recorder, or DVR, technology.
> 
> Investors, who expected the ruling on Thursday, sent TiVo's shares down 16.5 percent, or $1.44, to $7.31.
> 
> U.S. District Judge David Folsom said he would try to rule by October 1 but failing that, would have to delay a finding until after the end of that month, *according to attorneys who attended the hearing.
> *
> The damages stem from a 2006 jury finding that EchoStar illegally used the TiVo-invented feature, which allows users to scan through a television program while it is recording.
> 
> *TiVo lawyers argued in U.S. district court in Marshall, Texas *that it is owed $220 million in royalties and lost profits for the 18 months that the verdict was stayed to allow EchoStar to appeal. EchoStar has admitted to owing $16 million in additional damages.
> 
> An appeals court ordered the trial judge to determine whether and what amount of additional damages are owed TiVo.
> 
> TiVo also argued on Thursday for sanctions against EchoStar for allegedly failing to turn off the DVRs, as required in the injunction. EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.
> 
> (Reporting by Gina Keating; Editing by Gary Hill)


 Everything in bold was highlighted by me. Two items, apart from the geographical error, in the piece strongly suggest that the reporter was not there:

One, there is a byline "Los Angeles." If the reporter had been in Texarkana then the byline would be "Texarkana" (or "Marshall" if she was that confused).

Two, if the reporter had been there in person one would think she would attend the hearing. Even "Mike" the TiVo investor who showed up at the last minute without proper attire (coat and tie) was allowed in. Yet the reporter quotes "...attorneys who attended the hearing" and nothing about what she herself observed in the courtroom. First hand is always better than second hand, or at least a combination of the two. She reports nothing at all of what she observed in the courtroom. Why? She wasn't there.


----------



## dgordo

jacmyoung said:


> Why didn't you say so when your TiVo folks were predicting victory on 5/30, then 9/4? You were posting all that time, why say so only after the fact?
> 
> As a lawyer, my guess is it would be nice had you warned them then.
> 
> Instead it was me who had been telling them there would not be an on spot yes/no contempt ruling, that for all the yes/no contempt rulings I have read, they went on for 10 to 20 pages, took a lot of research and making sure the argument were sound and follow the standards, no way could the judges prepare them in a week or two, especially if they have other cases.


As I recall, the very first time I was asked when this would be over, which I believe was in feb or march(?) I said it would be 1 year minimum.


----------



## dgordo

jacmyoung said:


> He was there, did you read the above?


I have no idea if the reporter was there or not but I bet if you email her she will tell you.


----------



## jacmyoung

dgordo said:


> I have no idea if the reporter was there or not but I bet if you email her she will tell you.


Ok I read the above again Mike said the reporter misquoted Mr. Chu. I am waiting for Mike to talk to Mr. Chu or the Reuters reporters because that was a serious misquote. Maybe next week we will see a retraction?

BTW, you might have said something about a long court fight a year ago, but why did you not warn people when the market analyst said after the 5/30 meeting that there was a very good chance DISH would be found in contempt on 9/4 mostly based on what he thought the judge's facial expression in the 5/30 meeting.

You were here too that time, you know because of that analyst's report TiVo's price went up by a good 20% over a few weeks, and when on 9/4 the ruling was not out, the stock dropped almost 17%. Had you warned them, a lot of TiVo investors would not have lost so much on 9/4.

Now those market analysts are again picking and choosing what they want to read into the judge's facial expression, see a pattern?


----------



## scooper

Stocks are not for the faint of heart, nor those only playing for short term gains.


----------



## scooper

dgordo has said that he is a lawyer (for real), and I respect his taciturn participation here. He certainly does not want to get in trouble with his state / federal bar associations for inappropriate postings / conduct. Limiting his participation to explanations of how the legal process / courts operate is probably the safest course.


----------



## HobbyTalk

Ergan's Toupe;1783006 said:


> So you are a lawyer? :eek2:


:sure: Please try to keep up on the conversation


----------



## jacmyoung

scooper said:


> dgordo has said that he is a lawyer (for real), and I respect his taciturn participation here. He certainly does not want to get in trouble with his state / federal bar associations for inappropriate postings / conduct. Limiting his participation to explanations of how the legal process / courts operate is probably the safest course.


You are right about that. He is handicapped, I am not

He did however express his dismay about our legal system, at one point using the analogy of a murderer being found not guilty due to lack of evidence, and yet if later new evidence resurfaced the same person could not be found guilty again. I don't know I actually did not think that was entirely true but I admit not fully understanding what he meant.

To which James and others correctly pointed out that his analogy was not appropriate, DISH was found guilty, and now there may be new evidence to prove DISH is no longer guilty. Two opposite scenarios.

Not to mention when he as a lawyer expressed the above opinion about the very foundation of our legal system as how the accused must be treated, it did raise the question if the comment was appropriate or not from a lawyer.

I am not accusing him anything, only in response to your notion of what he should or should not say as a lawyer.

I personally think he should be allowed to free speech without fear of his bar credentials in question here.


----------



## James Long

jacmyoung said:


> DISH's alleged design around isn't the core of the decision ... DISH's failure to follow the injunction is the core of the decision. Anything else is just fluff.
> 
> 
> 
> Didn't you just fall into the same argument you have so wanted me not to do? Making a guess before the full transcript is available?
Click to expand...

No. I have the judge's order from June 5th (following the May 30th status hearing) and the actual Motion for Contempt backing me up. The core issue IS contempt on the face of the injunction: DISH not disabling the DVR functionality.


jacmyoung said:



> You are right about that. He is handicapped, I am not


We have evidence to the contrary (many of your posts).


----------



## dgordo

jacmyoung said:


> You are right about that. He is handicapped, I am not
> 
> He did however express his dismay about our legal system, at one point using the analogy of a murderer being found not guilty due to lack of evidence, and yet if later new evidence resurfaced the same person could not be found guilty again. I don't know I actually did not think that was entirely true but I admit not fully understanding what he meant.
> 
> To which James and others correctly pointed out that his analogy was not appropriate, DISH was found guilty, and now there may be new evidence to prove DISH is no longer guilty. Two opposite scenarios.
> 
> Not to mention when he as a lawyer expressed the above opinion about the very foundation of our legal system as how the accused must be treated, it did raise the question if the comment was appropriate or not from a lawyer.
> 
> I am not accusing him anything, only in response to your notion of what he should or should not say as a lawyer.
> 
> I personally think he should be allowed to free speech without fear of his bar credentials in question here.


I made no such analogy.

This is a different person:

http://www.dbstalk.com/showpost.php?p=1778263&postcount=56


----------



## jacmyoung

dgordo said:


> I made no such analogy.
> 
> This is a different person:
> 
> http://www.dbstalk.com/showpost.php?p=1778263&postcount=56


My mistake, I am truly sorry!


----------



## jacmyoung

James Long said:


> No. I have the judge's order from June 5th (following the May 30th status hearing) and the actual Motion for Contempt backing me up. The core issue IS contempt on the face of the injunction: DISH not disabling the DVR functionality.


You attacked me for speculating that the design around was one of the big discussions on 9/4, I asked you to wait till the full transcript to come out and find out, your judge's order or 5/30 discussion are not so relevant as far as how much was really talked about of the modification on 9/4.



> We have evidence to the contrary (many of your posts).


All you need to do is go all the way back to my every earlier posts, you would have the answer

But I am very honored that people think me that way, all my long hours of reading those court cases and books in the last few months had clearly paid off.


----------



## jclewter79

Does anybody else think that it is interesting that Tivo announced the new deal with D* on 9-3-08 and the next day when we found out that Charles had not opened his checkbook yet, the stock still dropped a $1.44?


----------



## James Long

jacmyoung said:


> James Long said:
> 
> 
> 
> No. I have the judge's order from June 5th (following the May 30th status hearing) and the actual Motion for Contempt backing me up. The core issue IS contempt on the face of the injunction: DISH not disabling the DVR functionality.
> 
> 
> 
> You attacked me for speculating that the design around was one of the big discussions on 9/4, I asked you to wait till the full transcript to come out and find out, your judge's order or 5/30 discussion are not so relevant as far as how much was really talked about of the modification on 9/4.
Click to expand...

Revisionist history. I've been asking people to WAIT on the full transcript since Thursday. You didn't bother to jump on the "wait" bandwagon until I specifically asked YOU to wait. Now it is your idea to wait? I should sue you for copyright infringement!

You'll find out just how much was discussed ... but my TRUE statement stands, even if you are incapable of understanding it. The core issue is contempt on the face of the injunction.


> We have evidence to the contrary (many of your posts).
> 
> 
> 
> All you need to do is go all the way back to my every earlier posts, you would have the answer
Click to expand...

You do realize that I was talking about you being handicapped? And you keep proving the point! :lol: 


> But I am very honored that people think me that way, all my long hours of reading those court cases and books in the last few months had clearly paid off.


Yes ... I believe you have made yourself more and more delusional over the past few months. We're here to seek clarity and you've offered confusion. Good job!


----------



## James Long

jclewter79 said:


> Does anybody else think that it is interesting that Tivo announced the new deal with D* on 9-3-08 and the next day when we found out that Charles had not opened his checkbook yet, the stock still dropped a $1.44?


There is some speculation that the stock was dumped in a manipulation. The stock did go back up on Friday (7.39%). Perhaps there were just a bunch of computer investors who had "sell at $9" programmed in, some that sold when they saw those people getting out and others that sold because they saw a price drop. Computers being smarter than people? 

If anyone was just holding on for the verdict and disappointed that "no verdict" was the answer on Thursday then they (in my humble opinion) really were not using their brains.


----------



## Greg Bimson

jacmyoung said:


> Of course the 220 is in addition to the 97.
> 
> But remember what I have said, TiVo so far has insisted even if DISH is not in contempt, the damages still will have to be assessed up to 4/08, completely wrong.
> 
> If DISH's new design around is good enough to avoid a contempt, the damages will be assessed up to the time the design around was implemented, not up to 4/08.


Hmm.

"If DISH's new design around is good enough to avoid contempt" has absolutely NOTHING to do with the damages.

Remember, there are two motions ongoing that technically have nothing to do with each other: the damages accrual and the contempt motions. One is not dependant upon the other.

In this case, the contempt and the damages do not go hand in hand. If DISH/SATS *is* found in contempt, then there are more damages due to TiVo for contempt.

If DISH/SATS is not found in contempt, nothing has been challenged regarding the point when the damages should end. Technically, a finding of no contempt can only be entered if the modification trumps the injunction. However, if the modification is merely colorably different, then it would still be infringing and require damages. Of course, this assumption is counter to your theory that the colorable difference must be determined first.

Meanwhile, I've said time and time again that DISH/SATS should have filed a motion with the court about their plan to design a work-around the patent regarding the adjudged infringing receivers installed in customers' homes. It appears that is exactly what Judge Folsom is questioning.


----------



## James Long

http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=aDaoiEUNYtOE


> Sept. 4 (Bloomberg) -- TiVo Inc. dropped the most in almost five years in Nasdaq trading after a federal judge said he may not rule on the company's patent dispute with Dish Network Corp. until November.
> 
> TiVo fell $1.44, or 16 percent, to $7.31 at 4 p.m. New York time, the biggest decline since Sep. 25, 2003. The shares have dropped 12 percent this year. TiVo told U.S. District Judge David Folsom in Texarkana, Texas, that Dish's digital-video recording service still violates the company's patent and asked it be shut down.
> ...
> Lawyers for Dish, the nation's second-largest satellite- television provider, and EchoStar Corp. told Folsom that they made enough changes to ensure that the service no longer uses TiVo's technology.
> 
> ``They did not disable the functionality of the infringing patent,'' Morgan Chu, an attorney for TiVo, told the judge in Texarkana, Texas. ``They did not disable the DVR.''


----------



## Herdfan

Curtis52 said:


> On the other hand, he could be proud of a decision that strengthens the law. Maybe he believes what he does makes a difference. A refreshing change from cynical officials.


I agree from a professional standpoint, he will want to make a decision that 1)follows the law and 2) strengthens the law, and 3)awards damages where appropriate.

But as a person, he understands that he could shut off 4 million DVR's of truly innocent people.

A settlement would accomplish all goals.


----------



## Herdfan

jclewter79 said:


> Does anybody else think that it is interesting that Tivo announced the new deal with D* on 9-3-08 and the next day when we found out that Charles had not opened his checkbook yet, the stock still dropped a $1.44?


No. The investors has priced a victory into the price of the stock. When it was not immediately forthcoming, short-termers bailed.

Plus part of the decline was the overall market taking a beating.


----------



## Ergan's Toupe

Herdfan said:


> I agree from a professional standpoint, he will want to make a decision that 1)follows the law and 2) strengthens the law, and 3)awards damages where appropriate.
> 
> But as a person, he understands that he could shut off 4 million DVR's of truly innocent people.
> 
> A settlement would accomplish all goals.


I agree. Only problem is Charlie is not going to settle until he absolutely has too.

Folsom finding Charlie in contempt should do the trick.


----------



## Ergan's Toupe

Herdfan said:


> No. The investors has priced a victory into the price of the stock. When it was not immediately forthcoming, short-termers bailed.
> 
> Plus part of the decline was the overall market taking a beating.


Anyone who was dumb enough to expect a decision on 9/4 deserved to lose their money.


----------



## TBoneit

Being found in contempt and having to turn off the DVRs would not, repeat not in my opinion force Charlie to settle. Just a guess.

I suspect we may or we may not hear more information on tonight's Charlie Chat.

Tomorrow we have more to talk about.

Having passed the 4th makes tonight's Charlie Chat the next milestone IMHO.


----------



## Ergan's Toupe

TBoneit said:


> Being found in contempt and having to turn off the DVRs would not, repeat not in my opinion force Charlie to settle. Just a guess.


Is that because of that "stubborn" thing again? If I was a customer/shareholder and Charlie let this get that far I would personally slap that rug off his head. :eek2:

There is no way Charlie gets slapped with contempt and doesn't settle.

What exactly is a "Charlie Chat"? I would like to hear that myself.


----------



## nobody99

Ergan's Toupe;1783593 said:


> What exactly is a "Charlie Chat"? I would like to hear that myself.


Charlie Chat is a show produced and aired only on DISH where a billionaire tries to come across as "one of the guys" and show just how much a regular joe he is.

It's DISH's flavor of Kool-Aid.


----------



## James Long

Ergan's Toupe;1783593 said:


> There is no way Charlie gets slapped with contempt and doesn't settle.


Want to bet? 

Contempt triggers appeals not settlement.


----------



## scooper

E T - you don't know Charlie very well.

I wouldn't predict settlement until a final ruling came down from SCOTUS or the highest court he can get to.

At this point - it's personal. They have their replacement S/W which has to be shown to infringe - that should be good for a few years yet.


----------



## Curtis0620

No stay on the contempt ruling will force settlement very fast.

And it looks like the price is now at $2.25 per DVR. 

Thanks, Charlie, you could have gotten $1 per DVR earlier.


----------



## nobody99

scooper said:


> They have their replacement S/W which *has to be shown to infringe* - that should be good for a few years yet.


Just so we're all clear here, the last couple thousand messages have debated the point I've bolded, and your quote is strictly your opinion. What you are suggesting would, in my opinion (and others) be precedent-setting. The already-placed receivers have already been ruled infringing, and they can't get out of that prison.

As far as newly-produced receivers, even that's open to debate - but they can still be held in contempt without a new trial provided TiVo produces evidence that they are merely colorably different. And until Judge Folsom _rules_ that they are _more than_ colorably different, they are presumed to be infringing as well. Even a simple contempt hearing to determine colorable differences will require a lot of discovery, which DISH will undoubtedly fight. If DISH doesn't provided enough information (source code, compilers, etc), they won't be let off the hook - remember, they have already been found to infringe.

So yes, we may have a few years left, but it's now turned into a much more expensive game of poker for Charlie. Ever month that goes by from this point forward might end up costing him $6 _per DVR, per month_ if we count enhanced damages and contempt fines.


----------



## scooper

Curtis0620 said:


> No stay on the contempt ruling will force settlement very fast.
> 
> And it looks like the price is now at $2.25 per DVR.
> 
> Thanks, Charlie, you could have gotten $1 per DVR earlier.


Can I quote you on that later ?


----------



## Ergan's Toupe

James Long said:


> Want to bet?
> 
> Contempt triggers appeals not settlement.


Not without a stay of injunction.


----------



## Curtis0620

scooper said:


> Can I quote you on that later ?


Are saying that if a stay isn't issued that they will turn off the DVR's while they appeal?

What do you think will happen if they are found in contempt and no stay is granted?


----------



## James Long

Ergan's Toupe;1783794 said:


> Not without a stay of injunction.


The easy path for Judge Folsom would be to find Contempt and stay enforcement pending appeal. Then he doesn't have to go against SCOTUS' 1967 decision and can let the appeals court take the heat. Unless there is some clear reasoning why Walker v Birmingham doesn't apply. The telegraphed message seems to be no stay if DISH is found in contempt. But I don't see that affecting DISH ... they will just get their stay somewhere else or take the risk.

The quickest ending for this would be for DISH and Tivo to settle with a lump sum for past infringement and a clean slate for the future ... but neither party wants that. DISH wants to be proven innocent ... they want it proven that they no longer infringe (that would have to be stipulated in any deal offered by Tivo). Tivo doesn't believe DISH has stopped infringing and wants payment on an ongoing basis (forever would be best).

At some point DISH will have software that is adjudicated as non-infringing. Not this year, perhaps not next, everyone will be in court until then. (Perhaps if the parties were literally required to be in court continuously there would be a quicker resolution ... but this "toss paper at each other every couple of weeks then spend an hour in front of a judge, wait and appeal" pattern is going to take a long time.

Don't expect any resolution soon ... even on contempt. If Judge Folsom rules by the end of the month we'll be lucky. Regardless of outcome there will be appeals.

Tivo needs to grant that DISH no longer infringes for there to be any settlement. Otherwise a settlement isn't a settlement, it is only a pause in the action.


----------



## Ergan's Toupe

James Long said:


> The telegraphed message seems to be no stay if DISH is found in contempt. But I don't see that affecting DISH ... they will just get their stay somewhere else or take the risk.


When you say Charlie will "take the risk", are you saying that he will continue to ignore the injunction?

Charlie has thumbed his nose at Folsom from day one. Do you really think he's crazy enough to thumb his nose at Folsom's contempt charge too? (If Folsom rules contempt, of course)

If Folsom rules contempt and doesn't stay, who exactly would Charlie go to?

Why do I think this whole crazy soap opera ends with someone in handcuffs and a "perp walk"?


----------



## James Long

Ergan's Toupe;1783905 said:


> If Folsom rules contempt and doesn't stay, who exactly would Charlie go to?


If you don't know that, perhaps you're not qualified to post in this thread. (Answer: The same place DISH got their last stay.)


> Why do I think this whole crazy soap opera ends with someone in handcuffs and a "perp walk"?


Perhaps a less than subtle bias against DISH and any of their actions? Although I agree that it would take armed marshals with guns to get DISH to disable their DVRs.


----------



## Ergan's Toupe

nobody99 said:


> Charlie Chat is a show produced and aired only on DISH where a billionaire tries to come across as "one of the guys" and show just how much a regular joe he is.
> 
> It's DISH's flavor of Kool-Aid.


Does he cherry pick emails and phone calls like: Charlie, YOU'RE THE BEST!!

Let me tell you how much BETTER THAN D* E* IS CHARLIE!!!

I THINK YOU ARE GIVING US TOO MUCH FOR OUR MONEY, CHARLIE!! and all that?

I'm getting "chills" just thinking about it. :eek2:

Can someone errr... TIVO it for me?


----------



## Ergan's Toupe

James Long said:


> If you don't know that, perhaps you're not qualified to post in this thread. (Answer: The same place DISH got their last stay.)
> .


I thought they already left it up to Folsom to do what he pleases? Why would they throw it back to Folsom and then get involved again?


----------



## James Long

Ergan's Toupe;1783937 said:


> I thought they already left it up to Folsom to do what he pleases? Why would they throw it back to Folsom and then get involved again?


You thought wrong. The hardware claims were "reversed and remanded" to Folsom's court but that does not give him carte blanche to do as he pleases with no oversight.

Whatever Folsom's decision is it will be appealable. The only question is who will be filing the appeal, Tivo or DISH.


----------



## Herdfan

James Long said:


> (Answer: The same place DISH got their last stay.)


But will that same place, be as stay friendly this time around? Remember, they already upheld the injunction as written.


----------



## James Long

It is all speculation ... at this point it could be November before we even get a verdict.


----------



## Ergan's Toupe

James Long said:


> Perhaps a less than subtle bias against DISH and any of their actions? Although I agree that it would take armed marshals with guns to get DISH to disable their DVRs.


If I was found in contempt and ignored it do you think I would wind up in handcuffs?

What makes Charlie special? Ton of money? Law doesn't apply to him?

Honestly, the reason I don't like Charlie is because I hate people that lie, cheat and steal to get what they want. And that is exactly what Charlie did. The whole reason he want's TIVO to admit he doesn't infringe anymore is because he was/still is. It bothers liars when they're caught.

He has been found guilty EVERY step of the way and I see no reason he won't be found guilty of contempt when all is said and done. It may take a couple of months but rest assured it wil happen, and I will be here when it does to give everyone the old "I told you so". 

And while I agree that the only way Charlie settles is at gunpoint, don't be surprised if that is (not literally) what happens.

His "stubbornness" is going to bite him in the butt when this is all said and done. How does $1.00 a box look for a settlement now? Too bad it will never happen. That ship has sailed.

Bottom line is Charlie could have settled for peanuts 3 to 4 years ago, but thought he could "starve" Tivo out by being greedy/'stubborn". Now that his plan blew up in his face, he's not man enough to admit he was wrong and will spend even more money and time, drag this out as long as he can, and when he finally writes a check for 10 times more than he could have settled for 4 years ago will claim some imaginary victory and all will be forgotten.


----------



## Ergan's Toupe

Herdfan said:


> But will that same place, be as stay friendly this time around? Remember, they already upheld the injunction as written.


That is what I meant by they already threw it back to Folsom.


----------



## James Long

Ergan's Toupe;1783968 said:


> Honestly, the reason I don't like Charlie is because I hate people that lie, cheat and steal to get what they want.


So I assume that you are 100% truthful and not deceptive in any way? Or is Mr Ergen to be held to a higher standard because of his position?


> He has been found guilty EVERY step of the way and I see no reason he won't be found guilty of contempt when all is said and done.


DISH's guilt isn't complete. At this point it has been narrowed down to a couple of "software" claims - the "hardware" claims are undetermined (reversed and remanded). Your personal lack of imagination - failure to see either side winning - isn't the deciding point in this case.


> ... and I will be here when it does to give everyone the old "I told you so".


Is that what you are here for? Believe me, an I told you so doesn't last long ... and in this case you (and others) will be waiting a long time - since there will be no final resolution in the short term.


Ergan's Toupe;1783970 said:


> Herdfan said:
> 
> 
> 
> But will that same place, be as stay friendly this time around? Remember, they already upheld the injunction as written.
> 
> 
> 
> That is what I meant by they already threw it back to Folsom.
Click to expand...

Contempt is a new issue. The appeals court has not ruled on contempt on the face of the injunction ... and based on the plethora of prior cases there is a decent chance that DISH's contempt verdict will be overturned. Not 100%, but there comes a point where the full logic of the situation comes into play.


----------



## nobody99

I think CAFC will certainly hear an appeal on a contempt charge. I think a stay is much, much less likely than it was for the original finding of infringement.

The appeals court can only reverse a court on matters of law. If DISH doesn't follow a court order, and Judge Folsom finds contempt, the only way they win on appeal is if the wording of the injunction was somehow misconstrued. I don't see it happening.

I still believe we'll see a settlement of some sort before we find out contempt or not. I just thought it would be within a week of the 9/4 hearing. Now it looks like it might be a month.


----------



## TBoneit

Ergan's Toupe;1783930 said:


> Does he cherry pick emails and phone calls like: Charlie, YOU'RE THE BEST!!
> 
> Let me tell you how much BETTER THAN D* E* IS CHARLIE!!!
> 
> I THINK YOU ARE GIVING US TOO MUCH FOR OUR MONEY, CHARLIE!! and all that?
> 
> I'm getting "chills" just thinking about it. :eek2:
> 
> Can someone errr... TIVO it for me?


Read all about it and the tech chats too. A very kind soul creates transcripts and posts them by the next day so you can read them. Right now you can go and read the past Chats here, both Charlie chats and Tech chats.

A Charlie chat is where I found out about the first DVR with integrated Satellite receiver and DVR capability Well ahead of DirecTV BTW. The Dishplayer 7100.


----------



## Ergan's Toupe

TBoneit said:


> Read all about it and the tech chats too. A very kind soul creates transcripts and posts them by the next day so you can read them. Right now you can go and read the past Chats here, both Charlie chats and Tech chats.
> 
> A Charlie chat is where I found out about the first DVR with integrated Satellite receiver and DVR capability Well ahead of DirecTV BTW. The Dishplayer 7100.


Thanks, will do.

James thinks I should broaden my horizons and give the other guys a chance so I will look for it tomorrow.


----------



## harsh

Curtis0620 said:


> And it looks like the price is now at $2.25 per DVR.


Seems way out of line considering TiVo is currently charging D* only $1.00 per household.

I don't think TiVo will get away with discriminatory pricing like that.


----------



## jacmyoung

Herdfan said:


> ...DISH only needs to offer some evidence to establish the doubt as whether they are in violation or not, to avoid a contempt citation, the evidence the non-mover uses does not even have to be substantial...


Sorry I mistakenly erased my original response. A stay on sanctions by a contempt ruling is automatic on appeal, it will be easy to do than during the trial. See another of my posts below for further explanations.


----------



## Curtis52

harsh said:


> Seems way out of line considering TiVo is currently charging D* only $1.00 per household.


The price of poker has gone up.


> As part of this new agreement, DIRECTV will pay a *substantially higher monthly fee* for households using the new high definition DIRECTV DVRs with TiVo than the fees for previously deployed DIRECTV DVRs with TiVo service.


Beyond that, TiVo doesn't even have to license Dish at any price if they don't want to.


----------



## jacmyoung

Curtis52 said:


> The price of poker has gone up.


No court had ever used future rates to assess damages. The damages are from the past.

If DISH is in contempt, then any future rates may be taken into consideration, but since the new DirecTiVo deal is over one year from now, I seriously doubt it will be an important factor.


----------



## Curtis0620

harsh said:


> Seems way out of line considering TiVo is currently charging D* only $1.00 per household.
> 
> I don't think TiVo will get away with discriminatory pricing like that.


If you read the new agreement with D*, the fee is going up substantially.


----------



## Herdfan

nobody99 said:


> The appeals court can only reverse a court on matters of law. If DISH doesn't follow a court order, and Judge Folsom finds contempt, *the only way they win on appeal is if the wording of the injunction was somehow misconstrued*.


And they already left the wording of the injunction intact.


----------



## Ergan's Toupe

Curtis52 said:


> The price of poker has gone up.
> Beyond that, TiVo doesn't even have to license Dish at any price if they don't want to.


Not to mention Tivo didn't have to drag D* to court for over 4 years and counting. I'm sure that Chuckles could have settled for a buck a box 4 years ago, but that ship is long gone.

See what "stubbornness" gets you?


----------



## nobody99

jacmyoung said:


> a stay of sanctions on a contempt citation is automatic on appeal.


Source?



> A contempt proceeding is a type of "summary" proceedings in which the non-mover (DISH) gets all the benefit of the doubt from the court,


Incorrect.



> DISH only needs to offer some evidence to establish the doubt as whether they are in violation or not, to avoid a contempt citation, the evidence the non-mover uses does not even have to be substantial.


Incorrect.



> The mover (TiVo) must prove with clear and convincing evidence that DISH still infringe on its patent.


Incorrect. And a complete misunderstanding of the 9/4 hearing.



> If the court rules against the non-mover (DISH), the non-mover can appeal without delay.


Irrelevant.



> If the court rules against the mover (TiVo), the mover usually cannot appeal until all matters are settled.


Irrelevant.



> Though in this case the judge can easily make his ruling final, meaning end of the case, so TiVo may appeal if it is a no contempt.


Made up. Please describe "easily make his ruling final." Is there a "non-final" version of a judge ruling? I hate to bring it up, but you do realize that we're talking about a *permanent* injunction after the case has been fully decided, right?

Contempt is an either/or proposition. There's either contempt, or there's not. Either side will immediately appeal it.



> But if the judge finds no contempt, and he still cannot finish all the other rulings, such as the damages, and maybe some other items, meaning if he still cannot end this case, TiVo will have to wait till the judge resolves all the remaining issues before they can appeal the no contempt ruling.


Incorrect.



> One can easily read those rules, they are online just google them.


Hahaha. Funny.


----------



## Curtis52

jacmyoung said:


> since the new DirecTiVo deal is over one year from now, I seriously doubt it will be an important factor.


I was under the impression that the deal has already been signed.


----------



## kstuart

My main wish is for software that would block the Forum posts of people who are both uninformed and biased.

Such posters can be identified by their mispellings of the names of those they are biased against, that they join Forums for only a short time in order to dominate a particular discussion, and they make a majority of posts in some threads.


----------



## Curtis52

kstuart said:


> My main wish is for software that would block the Forum posts of people who are both uninformed and biased.
> 
> Such posters can be identified by their mispellings of the names of those they are biased against, that they join Forums for only a short time in order to dominate a particular discussion, and they make a majority of posts in some threads.


Perhaps there is a forum for discussion of administrative policies.


----------



## James Long

Curtis0620 said:


> If you read the new agreement with D*, the fee is going up substantially.


Are you referring to the currently vaporware that Tivo plans to have written by 2010?

The fee may BE going up, but Tivo has to have the receiver software developed before they can charge for it.


----------



## Curtis0620

James Long said:


> Are you referring to the currently vaporware that Tivo plans to have written by 2010?
> 
> The fee may BE going up, but Tivo has to have the receiver software developed before they can charge for it.


It is a basis for what the market rate is.


----------



## James Long

It should only be a basis for what the market rate will be in 2010.
Applying it to the past is inappropriate.


----------



## Curtis0620

James Long said:


> It should only be a basis for what the market rate will be in 2010.
> Applying it to the past is inappropriate.


2009.


----------



## jacmyoung

Oh well I have apparently erased my previous post on the issue of summary proceeding while trying to correct a mistake, so here you go again:

A civil contempt proceeding is a summary proceeding.

In a summary proceeding, the non-mover (DISH in this case) is given all the considerations by the court, the mover (TiVo in this case) carries heavy burden of proof.

DISH only needs to offer substantial evidence to defeat a summary contempt judgment, regardless of the strength of the evidence.

TiVo must prove with clear and convincing evidence that DISH still infringes.

DISH can appeal a contempt judgment without any delay.

TiVo can only appeal a no contempt after the judge resolves all remaining issues, such as the damages and other items, which means TiVo almost will not be able to appeal a no contempt ruling until the judge issues all rulings and practically end the case.

Though in this case since it is very much the end of the case, the judge can rule on all matters and end the case, so TiVo can appeal soon if there is no contempt.

The difficulty levels of the burden of proof are:

1) The most difficult, in a criminal case, prove beyond reasonable doubt.

2) In a civil contempt proceeding, prove with clear and convincing evidence.

3) In a civil trial, prove with preponderance of evidence.

The difficulty level of 2) is between 1) and 3).

Meaning in this summary contempt proceeding it will be much more difficult for TiVo to prove the design around is infringing, than what they had proved the old design was infringing, everything being equal.

Except everything is not equal, because the design around has removed all the elements of the old design that were used to prove infringement.

That is why the only times I have read a patentee proved the infringer still infringed *(during a contempt proceeding that is)*, was when there was no design around, or the design around was merely colorable, like only the product labels were changed, or the appearance was different (hence the word "colorable"), or even if a few actual parts were modified, they were not relevant to the infringed constructions.


----------



## Greg Bimson

kstuart said:


> My main wish is for software that would block the Forum posts of people who are both uninformed and biased.


Then no one would be here...


----------



## jacmyoung

Greg Bimson said:


> Then no one would be here...


You maybe biased, but not uninformed, do not short change yourself


----------



## James Long

If the uninformed and biased were gone the informed and/or non-biased would have a nice short conversation, understand where their opinions differ and accept the differences. In other words, the threads would have dried up a long time ago. 

I do wish there were a higher level of conversation but we get what we get.


----------



## Ergan's Toupe

jacmyoung said:


> Oh well I have apparently erased my previous post on the issue of summary proceeding while trying to correct a mistake,


Pretty much explains why you deleted the whole post. :lol:


----------



## Ergan's Toupe

James Long said:


> If the uninformed and biased were gone the informed and/or non-biased would have a nice short conversation, understand where their opinions differ and accept the differences. In other words, the threads would have dried up a long time ago.
> 
> I do wish there were a higher level of conversation but we get what we get.


You'll miss me when I'm gone. :grin:


----------



## nobody99

James Long said:


> Are you referring to the currently vaporware that Tivo plans to have written by 2010?
> 
> The fee may BE going up, but Tivo has to have the receiver software developed before they can charge for it.


Kstuart, what was that you were saying about bias? :nono2:


----------



## Jason Nipp

Guys, I closed a Tivo vs E* thread in the past because it got too personal.

You guys are still taking shots at each other.

Please keep the posts to topic without making comments about each other or this thread will also be closed.

Peace


----------



## Curtis52

Jason Nipp said:


> Guys, I closed a Tivo vs E* thread in the past because it got too personal.


Link?


----------



## BNUMM

James Long said:


> If the uninformed and biased were gone the informed and/or non-biased would have a nice short conversation, understand where their opinions differ and accept the differences. In other words, the threads would have dried up a long time ago.
> 
> I do wish there were a higher level of conversation but we get what we get.


I wish the same. At least this discussion gives me something to do late at night.


----------



## jacmyoung

Curtis52 said:


> Link?


I thought all the TiVo v. Echostar threads were closed after a new one was in?


----------



## phrelin

Did someone start a contest in late 2007 or early 2008 that most of us don't know about? Something like the most posts on the TiVo v Echostar dispute will win a trip to Tahiti or something? I was just looking over the TiVo patent related threads and came up with a bunch. I've listed a few below with the origination date, title, and number of posts.

12/12/2001	TiVo Wins More Patents	*0*
3/10/2005	Tivo & Echostar to battle in court	*36*
3/27/2006	TiVo trial to begin over EchoStar DVR	*174*
4/13/2006	TIVO wins E* Lawsuit - Potential Impact on ALL DVRs	*155*
1/31/2008	TiVo wins injunction reinstement and damages	*370*
4/11/2008	The Tivo vs Echostar (mostly speculation) Thread	*854*
5/17/2008	TiVo vs Echostar ... Discussion leading to September 4th Hearing	*2,548*
6/30/2008	TiVo vs Echostar ... June 30th-July 18th Filings	*2,437*
9/4/2008 Tivo vs EchoStar ... September 4th Hearing *279*

Considering the threads I didn't list you guys are well on your way to 7,500 posts.:eek2:


----------



## jacmyoung

"...They did not disable the functionality of the infringing patent,'' Morgan Chu, an attorney for TiVo, told the judge in Texarkana, Texas. ``They did not disable the DVR.''

I almost missed this one from James' news report quote.

Mr. Chu was not clear himself what the order was.

Is it to disable the functionality of the infringing patent?

Or is it to disable the DVR?

That is the question the judge must answer. Even Mr Chu seemed to imply there are two possible interpretations of the order, he just think it is the later.

You see any ambiguity from the order, interpreted even by TiVo to be of two possible ways, the ambuguity goes to DISH, not TiVo, I am sure he knows that.

Remeber that Starbrite case? The court said of couse they meant the "internal formulation", not the products? Even though the order clearly said to stop the product, did not mention the "internal formulation" at all?

It is all about interpretation, and the court will say whatever needs to be said to conform to the uniform standards, not to argue whether its own order was clear or not.


----------



## Curtis52

jacmyoung said:


> "...They did not disable the functionality of the infringing patent,'' Morgan Chu, an attorney for TiVo, told the judge in Texarkana, Texas. ``They did not disable the DVR.''
> 
> I almost missed this one from James' news report quote.
> 
> Mr. Chu was not clear himself what the order was.
> 
> Is it to disable the functionality of the infringing patent?
> 
> Or is it to disable the DVR?


This is known as the either/or logical fallacy. The scammer tries to convince the victims that only one or the other could possibly be true. Fascinating to watch.


----------



## James Long

phrelin said:


> Did someone start a contest in late 2007 or early 2008 that most of us don't know about? Something like the most posts on the TiVo v Echostar dispute will win a trip to Tahiti or something? I was just looking over the TiVo patent related threads and came up with a bunch. I've listed a few below with the origination date, title, and number of posts.
> 
> 12/12/2001	TiVo Wins More Patents	*0*
> 3/10/2005	Tivo & Echostar to battle in court	*36*
> 3/27/2006	TiVo trial to begin over EchoStar DVR	*174*
> 4/13/2006	TIVO wins E* Lawsuit - Potential Impact on ALL DVRs	*155*
> 1/31/2008	TiVo wins injunction reinstement and damages	*370*
> 4/11/2008	The Tivo vs Echostar (mostly speculation) Thread	*854*
> 5/17/2008	TiVo vs Echostar ... Discussion leading to September 4th Hearing	*2,548*
> 6/30/2008	TiVo vs Echostar ... June 30th-July 18th Filings	*2,437*
> 9/4/2008 Tivo vs EchoStar ... September 4th Hearing *279*
> 
> Considering the threads I didn't list you guys are well on your way to 7,500 posts.:eek2:


FYI: 5/17 was the one Jason closed ... and it seems like it would be a good policy to keep the threads closed when there is nothing real to discuss. History has shown that it just becomes people talking past each other or trolling for a response - the threads up through 1/31 being the best for information and the latter ones being light on information compared to rhetoric. (Or not a lot of signal in the noise.)

I've been creating new threads when something happens so those who don't want to wade through the rhetoric can just look for new threads - but I agree with the elder statesman moderator Jason ... if this thread turns into yet another personal jab festival it will be closed.

Enough about moderation ... :backtotop Tivo vs EchoStar ---


----------



## phrelin

Moderation in all things.


----------



## jacmyoung

Curtis52 said:


> This is known as the either/or logical fallacy. The scammer tries to convince the victims that only one or the other could possibly be true. Fascinating to watch.


Remember what happened in the Starbrite case?

The order specifically prohibited 6 proudcts by their names.

The "scammer" modified the formula of the paint and continued to do the 6 products as usual.

The patentee said to the court the scammer was in contempt of violating the order, which specifically ordered the 6 products to be stopped. What was wrong with that you ask?

I don't know except the court said no, you could not "possibly" interpret my order as to say to stop those 6 products by their names (despite that it did say so exactly), but meant to say to stop the infringing "internal formulation" in the products (except it never said so in the order).

Was it an either/or question? How did the court make such a "ridiculous interpretation" on behalf of the "scammer"?

Now in this case the patentee said hey your honor, DISH has clearly violated your order by not disabling those DVRs.

But the judge may say, TiVo, you cannot possibly interpret my order as to disable the DVRs, but to meant to disable the old internal software that was infringing.

You say how could it be? How can you possibly make such an interpretation?

Because the judge can, that is the answer. The court can offer its own interpretation as it sees fit, to conform to the uniform standards.

The court did not have to accept the pantentee's interpretation in the StarBrite case, nor is the court today must accept TiVo's interpretation.

The judge will interpret his order for you, not the other way around.

The "scammer" does not have to prove anything, except to convince the judge they currently *may not* be infringing on the patent anymore, that will be good enough. The "scammer" in the StarBrite case did it that way, in fact all "scammers" who got away with not being in contempt did so in the exact same way:

Look your honor, I have evidence that I may not be infringing anymore. If the "scammer" can convince the judge so, the judge will not find him in contempt, even if that means the judge must come up with a "ridiculous way" to interpret his own order.

Fascinating indeed.


----------



## Greg Bimson

jacmyoung said:


> Remember what happened in the Starbrite case?
> 
> The order specifically prohibited 6 proudcts by their names.
> 
> The "scammer" modified the formula of the paint and continued to do the 6 products as usual.
> 
> The patentee said to the court the scammer was in contempt of violating the order, which specifically ordered the 6 products to be stopped. What was wrong with that you ask?


The patentee filed a motion with the court, asking for contempt. The reasoning was because the infringer was *selling* six products which were specifically named in the injunction, although it was found that the infringer modified said products.

The *accusation* was that the infringer was *selling* infringing product, but the accusation came up short, as that product had been modified before sale.

In this case, the only accusation in front of the court right now is regarding a specific procedure ordered by the court on products already found to infringe and within customers' homes.

So the only question becomes: does the fact that there was a modification outweigh the injunction on already adjudicated devices, or is it more paramount to follow the injunction on those adjudicated devices? That is the legal question which must be answered.

My feeling is that the court will rule in favor of TiVo, because if the courts rule in favor of DISH/SATS, there will never be an end to the litigation.


----------



## jacmyoung

Greg Bimson said:


> The patentee filed a motion with the court, asking for contempt. The reasoning was because the infringer was *selling* six products which were specifically named in the injunction, although it was found that the infringer modified said products.
> 
> The *accusation* was that the infringer was *selling* infringing product, but the accusation came up short, as that product had been modified before sale.
> 
> In this case, the only accusation in front of the court right now is regarding a specific procedure ordered by the court on products already found to infringe and within customers' homes.
> 
> So the only question becomes: does the fact that there was a modification outweigh the injunction on already adjudicated devices, or is it more paramount to follow the injunction on those adjudicated devices? That is the legal question which must be answered.
> 
> My feeling is that the court will rule in favor of TiVo, because if the courts rule in favor of DISH/SATS, there will never be an end to the litigation.


Missing the point still.

The point here is not what product, where, sold or not, the point is how the judge may interpret his own order for everyone, not how TiVo may interpret it for the judge.

Don't assume just because you think this is how the order is interpreted, that the judge will have to accept it.

No, it will be the judge's call how he wants to interpret his own order, not what others try to tell him, not TiVo, not DISH, not you and not me. It will be him and him only who will make that call.

And in make that call, he must make sure DISH must still infringe on TiVo's patent, before he may cite DISH in contempt, if he has any doubt about it, there is no contempt, even if he has to come up with some odd way to explain what his order really means.

That is the point and the point only.

Once there is no contempt, the litigation will end, DISH and TiVo will settle.


----------



## James Long

Calm down ...

Go back and read the Motion for Contempt. That will let you know what the issue currently before the court is. If that doesn't help, read the judge's order from June 5th. It is pretty clear.

Walker vs Birmingham makes it even clearer. The Supreme Court upheld contempt against parties that disobeyed an injunction that was based on a law later ruled unconstitutional. It doesn't matter if the injunction is fair and just ... it can even be unconstitutional ... Walker vs Birmingham says it MUST be followed.

Perhaps you can spend some energy refuting that ... since that is where the case is today.


----------



## Greg Bimson

jacmyoung said:


> And in make that call, he must make sure DISH must still infringe on TiVo's patent, before he may cite DISH in contempt, if he has any doubt about it, there is no contempt, even if he has to come up with some odd way to explain what his order really means.
> 
> That is the point and the point only.


And that is completely where you and I disagree, for one specific reason:

If an infringer wants the court to have a device already ruled as an infringement from the scope of the injunction, the infringer should move the court by a motion of clarification regarding those devices.

That is exactly what DISH/SATS filed to attempt to continue their Advance Exchange Program for warranty replacements. And that is what should have been done with the devices that were labelled as infringements with a guilty verdict.


----------



## jacmyoung

James Long said:


> Calm down ...
> 
> Go back and read the Motion for Contempt. That will let you know what the issue currently before the court is. If that doesn't help, read the judge's order from June 5th. It is pretty clear.
> 
> Walker vs Birmingham makes it even clearer. The Supreme Court upheld contempt against parties that disobeyed an injunction that was based on a law later ruled unconstitutional. It doesn't matter if the injunction is fair and just ... it can even be unconstitutional ... Walker vs Birmingham says it MUST be followed.
> 
> Perhaps you can spend some energy refuting that ... since that is where the case is today.


Why do you keep bringing back that Judge Ward case? I already said Judge Folsom told TiVo on 9/4 to forget about that case, the two cases are "not equal".

Just wait for the full transcript if you do not believe me now:

"10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;"


----------



## jacmyoung

Greg Bimson said:


> And that is completely where you and I disagree, for one specific reason:
> 
> If an infringer wants the court to have a device already ruled as an infringement from the scope of the injunction, the infringer should move the court by a motion of clarification regarding those devices.
> 
> That is exactly what DISH/SATS filed to attempt to continue their Advance Exchange Program for warranty replacements. And that is what should have been done with the devices that were labelled as infringements with a guilty verdict.


Of course we disagree on that.

But when I made a point, while you may disagree with that point, what is not so persuasive is for you to argue on something else, not arguing on my point.

Let me repeat my point:

The judge does not have to accept TiVo's interpretation, nor anyone else's. He makes the call, he will tell us what his order means. That was my point. Don't assume just because TiVo thought it that way, the judge must also think the same way.

Why, because when TiVo thought DISH owed them treble damages and attorney fees, because DISH's infringement was willful, according to the jury, and because willful infringement often justifies treble damages and attorney fees, did the judge simply accept what TiVo was saying?

Again, my point is don't just assume whatever TiVo's interpretation will be the judge's interpretation.


----------



## James Long

jacmyoung said:


> Why do you keep bringing back that Judge Ward case? I already said Judge Folsom told TiVo on 9/4 to forget about that case, the two cases are "not equal".
> 
> Just wait for the full transcript if you do not believe me now.


So pending proof your assumptions are always 100% correct? Unbelievable.

It doesn't matter what YOU already said ... what matters is what the court said. Until the court publishes what it said please don't lecture on what your imagination thinks happened. You keep saying wait for the transcript yet you fail miserably at waiting for that transcript. :nono2:

Now back to my question, which is based on the filings leading up to this case (and I'm sorry I didn't look at that case weeks ago) - but why should a rule applied to Dr King not apply to Mr Ergen?


jacmyoung said:


> Again, my point is don't just assume whatever TiVo's interpretation will be the judge's interpretation.


Likewise, don't assume that DISH's (or your) interpretation will be the judge's interpretation. Follow the advice of the number one poster (post count) since January on this topic: Wait for the transcript (and then wait for the ruling).

There are no bonus points for guessing right.


----------



## Greg Bimson

And that has been far from my assumption. My assumption from day one, when the Court of Appeals remanded the case back to Judge Folsom, while DISH/SATS stated that no one has to worry about DVR functionality being removed, was that it would be the courts that make the ruling.

However, it does appear that the deck is stacked in TiVo's favor. It does not appear to be that the deck is completely with TiVo.


----------



## jacmyoung

James Long said:


> So pending proof your assumptions are always 100% correct? Unbelievable.
> 
> It doesn't matter what YOU already said ... what matters is what the court said. Until the court publishes what it said please don't lecture on what your imagination thinks happened. You keep saying wait for the transcript yet you fail miserably at waiting for that transcript. :nono2:
> 
> Now back to my question, which is based on the filings leading up to this case (and I'm sorry I didn't look at that case weeks ago) - but why should a rule applied to Dr King not apply to Mr Ergen?


"10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;"

Now I am not saying what I have interpreted the above was 100% correct that Judge Folsom had already told TiVo to forget about this case, so I asked we both wait for the full transcript to find out.

Where did you get the idea I was trying to lecture you? I simply made my speculation based on the above exchange, since I understand it is not complete, I agreed to wait till the full transcript to see if my guess is right or not.

There are four major reasons why I speculated that way:

1) It was stupid to use that case, because what TiVo did was to elevate DISH's position to that of Dr. King's, and draw a parallel that DISH is somehow someone who is trying to seek justice by contesting an unjust law. Not too smart.

2) Most judges will not like to touch this case with a ten foot pole, especially using it to prove a contempt ruling, not very politically smart.

3) The two cases are different, again, Dr. King intentionally disobeyed the law at the time to prove a point. His conduct was a violation. DISH has not tried to intentionally disobey the order, DISH believes they have made a good faith effort to be in compliance of the order. Two different intentions.

4) While Judge Ward had made his decision that Dr. King had violated the order, in our case Judge Folsom has not yet ruled whether DISH violated his order or not.


----------



## James Long

jacmyoung said:


> Where did you get the idea I was trying to lecture you?


When you scolded me for mentioning Walker vs Birmingham:


jacmyoung said:


> Why do you keep bringing back that Judge Ward case? I already said Judge Folsom told TiVo on 9/4 to forget about that case, the two cases are "not equal".


And of course, you've gone back and changed that post after my reply ... 

I bring up Walker vs Birmingham because it is _important_ ... despite your off hand dismissal of it.


----------



## James Long

Minimal minute entry ... but read more than a couple of lines:10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;
10:25 Chu/ we disagree with position taken by Echostar;
10:25 ct/ if I find no where does that leave you
10:25 Chu/ responds;
10:27 Baxter/ address' the ct;​If Judge Folsom told Tivo to "forget about" Walker vs Birmingham why did Baxter go ahead and address the court? It seems pointless for Baxter to brief on an issue being forgotten.


----------



## Greg Bimson

Just what I was going to do, James...

From 10:17 to 10:24, DISH/SATS counsel McElhinny was discussing the new software.

Up comes TiVo counsel Chu to rebut, and Chu does not, other than to say co-counsel Baxter has the information on the Walker v. Birmingham case. That is when Judge Folsom is asking TiVo if they are conceding the "design-around" is perhaps not an issue.


----------



## James Long

Infringement isn't an issue when relying on Walker vs Birmingham (and other simple contempt rulings). As noted, the validity of the injunction (assuming it would no longer apply if DISH stopped infringing or even if demanding DISH disable their DVR functionality was ruled unconstitutional) isn't the issue. The issue Tivo is pursuing is contempt on the face of the injunction ... a simple violation of the court's order.

Tivo was wise to confirm that they do not agree with EchoStar's opinion on new software ... apparently they ceeded nothing.


----------



## nobody99

jacmyoung said:


> Why, because when TiVo thought DISH owed them treble damages and attorney fees, because DISH's infringement was willful, according to the jury, and because willful infringement often justifies treble damages and attorney fees, did the judge simply accept what TiVo was saying?


Uh, because there was evidence that was not allowed where DISH got an opinion from an outside law firm? Folsom decided that the jury may have decided differently.

All plainly available in the decision. You've read it, right?


----------



## nobody99

> Per the Court's rulings, Defendants were not allowed to introduce evidence that they sought and received two outside opinions of counsel, the M&G opinion letters. Nor were Defendants allowed to proffer witness testimony regarding the M&G opinion letters. Defendants' M&G opinion letters were evidence that could have gone to demonstrate Defendants' state of mind at least to post-filing infringement. They illustrate a detailed, thorough analysis on which a fact finder might have determined Defendants reasonably relied.


Happy? That's why there were no treble damanges, not because the Judge did not "simply accept what TiVo was saying."


----------



## jacmyoung

Greg Bimson said:


> And that has been far from my assumption. My assumption from day one, when the Court of Appeals remanded the case back to Judge Folsom, while DISH/SATS stated that no one has to worry about DVR functionality being removed, was that it would be the courts that make the ruling.
> 
> However, it does appear that the deck is stacked in TiVo's favor. It does not appear to be that the deck is completely with TiVo.


Again I am not arguing with your assumption on this one, but preferred that you stuck to my point of whether the judge must accept TiVo's interpretation or not, when you tried to disagree with my such point, don't change it to something else, such as whether the product was sold or not.


----------



## jacmyoung

jacmyoung said:


> ...No, it will be the judge's call how he wants to interpret his own order, not what others try to tell him, not TiVo, not DISH, not you and not me. It will be him and him only who will make that call...





James Long said:


> ...It doesn't matter what YOU already said ... what matters is what the court said. ...


I said it first. Did you just borrow my line?


----------



## jacmyoung

James Long said:


> Minimal minute entry ... but read more than a couple of lines:10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
> 10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;​If Judge Folsom told Tivo to "forget about" Walker vs Birmingham why did Baxter go ahead and address the court? It seems pointless for Baxter to brief on an issue being forgotten.


That is because you speculated the "10:27 Baxter/ Address" was about addressing the Judge Ward case. I didn't.

Again we can find out after the full version is available.

You see we are all trying to interpret the skeleton transcript, not just me. Except you keep asking me not to do it, while you are doing it all this time.


----------



## jacmyoung

Greg Bimson said:


> Just what I was going to do, James...
> 
> From 10:17 to 10:24, DISH/SATS counsel McElhinny was discussing the new software.
> 
> Up comes TiVo counsel Chu to rebut, and Chu does not, other than to say co-counsel Baxter has the information on the Walker v. Birmingham case. That is when Judge Folsom is asking TiVo if they are conceding the "design-around" is perhaps not an issue.


That speculation does not make any sense, why would the judge ask TiVo if they would concede if the design around was perhaps not and issue? TiVo said all along in TiVo's view the design around was not an issue on 9/4.

Again James everyone is speculating what was said based on that skeletion transcript, so please stop insisting I am the only one.


----------



## jacmyoung

nobody99 said:


> Uh, because there was evidence that was not allowed where DISH got an opinion from an outside law firm? Folsom decided that the jury may have decided differently.
> 
> All plainly available in the decision. You've read it, right?


Likewise, there are evidence now that were not present at the time of the injunction, that DISH replaced the old software with the new software.

The new software evidence may make a difference? Are you to say the judge cannot use such new evidence to find in DISH's favor? Because according to you the judge did use that evidence you mentioned which was not available to the jury to rule in favor of DISH last time.

Are you sure the judge cannot do it again this time?


----------



## jacmyoung

James Long said:


> ...There are no bonus points for guessing right.


Oh yes there is, you did not call these threads speculation threads for no reason

That is exactly what I am doing, sticking to your purpose of having these threads, to post new court room info, then to speculate it away. Please don't tell me to stop just because you do not like my speculations.

Offer your own speculations instead, that is what these threads are about

If we wait after the fact, it will not be speculation anymore. What fun will that be?


----------



## James Long

jacmyoung said:


> Offer your own speculations instead, that is what these threads are about


If you want speculation stop jumping on everyone else in the thread who offers it.

Hundreds of words of speculation ignored. Perhaps that is the only way to save this thread. :nono2:


----------



## bobcamp1

This thread is way beyond saving.

Note the times on the left of the transcript. Does anyone think a lawyer said something, then there was a two minute pause, then someone else something, etc.? I think there are a few hundred words missing from the skeleton transcript.

My comment was on the "why didn't you tell the court about the workaround earlier?" Having been in this position before, this is done because:

1. The patent application hasn't been submitted yet. Even though the U.S. goes by "first to invent" rather than "first to file" (forgot the correct terms for this), you always play it safe. Especially since you and your patent lawyers are refining the invention and coming up with new claims and inventions during the process.

If the work-around comes out in court before it is done, the other side could file a motion of discovery about it and patent it out from underneath you.

2. To stall and drag out the process forever. It's a game of chicken -- who will blink first. We have around 5 more years of legal process here.


----------



## jacmyoung

James Long said:


> If you want speculation stop jumping on everyone else in the thread who offers it.
> 
> Hundreds of words of speculation ignored. Perhaps that is the only way to save this thread. :nono2:


Everytime I posted my speculations I was immediately jumped on by many, often in very insulting ways, I can quote those if you like.


----------



## James Long

Don't bother. This thread is for Tivo vs Echostar discussion ... not for discussion of posters.


:backtotop


----------



## jacmyoung

bobcamp1 said:


> ...My comment was on the "why didn't you tell the court about the workaround earlier?" Having been in this position before, this is done because:...


While I agree with your reasoning to some degree, and also do not think judge will use that to cite DISH in contempt, simply because there is no requirement DISH must tell the court about the workaround before a contempt issue surfaces.

But, it would have been better DISH told the court about it, were open about it.

Keeping the court informed of events that may alter the outcome of the trial or any contempt issue is always a good policy.

That said, in some of the court cases I have quoted, some infringers had done things in ways more imperfect than DISH, and the courts did not like those, but they did not influence the outcome, as long as what the infringers did were not prohibited or were not illegal.

It is very simple, the judge's ruling must be based on the law and the law only, not how he likes one party or the other, nor how much he was annoyed by one party or the other. A judge may not be vindictive when making a ruling.


----------



## Greg Bimson

jacmyoung said:


> Likewise, there are evidence now that were not present at the time of the injunction, that DISH replaced the old software with the new software.


But that is not new "evidence". The evidence is what was presented during the jury trial, and then again during the bench trial to determine the damages and the scope of the injunction.

What we then have is a "new action" on devices already adjudged as infringements. If the court is unaware of a new action, the court cannot do anything about changing the damages nor the scope of the injunction.


jacmyoung said:


> Again James everyone is speculating what was said based on that skeletion transcript, so please stop insisting I am the only one.


You offered a belief as to what was discussed in front on Judge Folsom. Of course I get a chance to rebut it. 


Greg Bimson said:


> From 10:17 to 10:24, DISH/SATS counsel McElhinny was discussing the new software.
> 
> Up comes TiVo counsel Chu to rebut, and Chu does not, other than to say co-counsel Baxter has the information on the Walker v. Birmingham case. That is when Judge Folsom is asking TiVo if they are conceding the "design-around" is perhaps not an issue.





jacmyoung said:


> That speculation does not make any sense, why would the judge ask TiVo if they would concede if the design around was perhaps not and issue? TiVo said all along in TiVo's view the design around was not an issue on 9/4.


Because the plaintiff presents their arguments, then the defense gets to defend those arguments. Once the defending side presents their arguments, there is usually an opportunity to rebut given to the plaintiffs.


> 10:00 ct opens; *2 motions*;
> 10:00 ptys provide introduction;
> *First Motion
> Plaintiff's charge*
> 10:00 Chu/ argues motion for contempt;
> 10:09 ct/ can you site me to a case, design around;
> 10:09 Chu/ responds; closest case to the following proposition;
> *Defense's rebuttal and arguments*
> 10:12 McElhinny/ responds;
> 10:12 ct/ why didn't you tell the court that you were attempting a design around;
> 10:12 McElhinny/ responds;
> 10:13 ct/ status of Delaware action;
> 10:13 McElhinny/ pending with a motion to dismiss pending;
> 10:16 ct/ in briefing alerted, read FCC filings to find out about the design arounds;
> 10:16 McElhinny/ responds;
> 10:17 ct/ contempt proceedings, extent of design around;
> 10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
> *Plaintiff's rebuttal of Defendant's arguments*
> 10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
> 10:24 ct/ are you conceding that this is perhaps not an issue;
> 10:25 Chu/ we disagree with position taken by Echostar;
> 10:25 ct/ if I find no where does that leave you
> 10:25 Chu/ responds;
> 10:27 Baxter/ address' the ct;
> *Second motion*
> 10:27 ct/ go forward with second motion;
> *Plaintiff's charge*
> 10:28 Byrd/ damages motion;
> 10:30 ct/ time period
> 10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
> 10:32 ct/ Echostar started implementing design around in October of '06;
> 10:32 Byrd/ responds, end of October;
> 10:32 ct/ damages;
> 10:33 Byrd/ totally unaffected;
> 10:33 ct/ you feel entitled if there is a contempt order or not;
> 10:33 Byrd/ continues with argument;
> *Defense's rebuttal and arguments*
> 10:36 McElhinny/ responds;
> 10:37 ct/ damages under that;
> 10:37 McElhinny/ responds;
> 10:37 ct/ that is the very minimum
> 10:38 McElhinny/ no;
> *Plaintiff's rebuttal of Defendant's arguments*
> 10:43 Byrd/ reply;
> 10:47 ct/ will give it all the attention I can;
> 10:47 Chu/ other hrg if necessary to have it;
> 10:48 McElhinny/ huge pending discovery fight; and would appreciate if ct would look if this is the way you want to go;
> 10:48 ct/ will reserve how to go forward until I do a little more looking;
> 10:49 adjourned;


The only rebuttal given by TiVo counsel Chu was regarding the design-around presented by DISH/SATS counsel McElhinny at 10:17. You'll see when the transcript comes out.


----------



## nobody99

jacmyoung said:


> It is very simple, the judge's ruling must be based on the law and the law only,


Which is precisely why contempt is the only option. The language of the injunction does not allow DISH any leeway on the already-adjudicated, already-placed DVRS. Anything else would be an error in law, immediately appealed, and likely remanded back to Folsom with instructions to find contempt. I am glad you finally see that.



> not how he likes one party or the other, nor how much he was annoyed by one party or the other. A judge may not be vindictive when making a ruling.


That's the way it would work if our judges were robots. They are not. They are humans with emotion like everyone else. You are naive if you believe a judge can't get pissed off enough at one party to skew his decisions against them.


----------



## scooper

nobody99 said:


> That's the way it would work if our judges were robots. They are not. They are humans with emotion like everyone else. You are naive if you believe a judge can't get pissed off enough at one party to skew his decisions against them.


Which can then get appealed for said bias.


----------



## nobody99

scooper said:


> Which can then get appealed for said bias.


Absolutely. But wouldn't you rather not piss off a judge? It just seems like a bad thing to do, generally speaking.


----------



## Ergan's Toupe

nobody99 said:


> Absolutely. But wouldn't you rather not piss off a judge? It just seems like a bad thing to do, generally speaking.


It doesn't seem to matter to a certain "stubborn" billionaire.

And speaking of Chuckles, no mention of lawsuit during last nights "Charlie Chat."

Bummer.


----------



## jacmyoung

Greg Bimson said:


> But that is not new "evidence". The evidence is what was presented during the jury trial, and then again during the bench trial to determine the damages and the scope of the injunction.
> 
> What we then have is a "new action" on devices already adjudged as infringements. If the court is unaware of a new action, the court cannot do anything about changing the damages nor the scope of the injunction.You offered a belief as to what was discussed in front on Judge Folsom. Of course I get a chance to rebut it. Because the plaintiff presents their arguments, then the defense gets to defend those arguments. Once the defending side presents their arguments, there is usually an opportunity to rebut given to the plaintiffs.The only rebuttal given by TiVo counsel Chu was regarding the design-around presented by DISH/SATS counsel McElhinny at 10:17. You'll see when the transcript comes out.


"*Plaintiff's rebuttal of Defendant's arguments*
10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;"

I was disagreeing with your speculation that the judge was asking Mr. Chu: "are you conceding that this [design around] is perhaps not an issue&#8230;"

Because it did not make any sense for the judge to ask Mr. Chu such question, why? As I said TiVo never said the design around was an issue, TiVo had always maintained that the design around should not be an issue when it came to prima facie violation, so the judge could not have asked Mr. Chu if he was conceding the design around was a non-issue.

It was likely the judge was asking: "are you conceding that this [Judge Ward case] is perhaps not an issue&#8230;" Because this judge's question followed Mr. Chu's bringing up the Judge Ward's case.

Of course I was speculating also. If I am correct, then by asking Mr. Chu that question it meant that Judge Ward's case Mr. Chu/Mr. Baxter brought up at 10:24, was thrown out by the judge at 10:24, so three minutes later, at 10:27, when Mr. Baxter again addressed the judge, what he said was not likely about the Judge Ward case, because that 1960's case was already considered by the judge as a non-issue three minutes earlier.

As far as the new software as the new evidence, your argument again is it is irrelevant, which I totally disagree. We will just have to wait and see.


----------



## phrelin

My goodness, I didn't think you all would reach 7,500 posts on this subject without a full transcript from which one could discuss inferred subtle nuance. But you're getting there.


----------



## HobbyTalk

scooper said:


> Which can then get appealed for said bias.


Maybe that is E*'s plan, drag it on further with more appeals/remands.


----------



## nobody99

I can't help it, when I read this:

*
10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;
10:25 Chu/ we disagree with position taken by Echostar;
10:25 ct/ if I find no where does that leave you
*

I'm waiting for this to follow:

*
10:25 McElhinny/ Someone set us up the bomb
10:25 Chu/ All Your Base Are Belong To Us
10:26 Chu/You have no chance to survive make your time
10:26 ct/ha ha ha ha
*

I'm still holding out hope that the court has a sense of humor


----------



## Greg Bimson

HobbyTalk said:


> Maybe that is E*'s plan, drag it on further with more appeals/remands.


Of course that is the plan.

The problem is if DISH/SATS loses. A settlement NOW would be much better financially than if DISH/SATS loses.


----------



## jacmyoung

Greg Bimson said:


> Of course that is the plan.
> 
> The problem is if DISH/SATS loses. A settlement NOW would be much better financially than if DISH/SATS loses.


The same can be said about TiVo, don't wait after there is a no contempt.

At least DISH can appeal without delay, TiVo might have to wait a little depending on how conclusive the judge's rulings will be.


----------



## Curtis0620

jacmyoung said:


> The same can be said about TiVo, don't wait after there is a no contempt.
> 
> At least DISH can appeal without delay, TiVo might have to wait a little depending on how conclusive the judge's rulings will be.


After the new deal with Directv, a loss hurts DISH much more than a TiVo loss now.

TiVo is more likely now to force a shutoff to get what they want, a licensing deal. I would say a few days with the DVR functions shut off will really hurt.


----------



## jims

There is still the old axiom that a judges despise being told that he/she is wrong and doesn't like their direction being ignored or overturned. With that said Judge Folton was told that he was partially wrong in his direction to the jury but that his injunction was upheld. The Court of Appeals is the same way in that they are judges sor they don't like to be told they are wrong and don't like their direction being ignored. I do think this case will take a while and it reminds me of Bleak House, but some day it will end.


----------



## jacmyoung

Curtis0620 said:


> After the new deal with Directv, a loss hurts DISH much more than a TiVo loss now.
> 
> TiVo is more likely now to force a shutoff to get what they want, a licensing deal. I would say a few days with the DVR functions shut off will really hurt.


If so then why TiVo's value dropped almost 17% when there was no contempt ruling on 9/4, and DISH's value has been as if TiVo v. E* never existed?


----------



## James Long

jacmyoung said:


> If I am correct, then by asking Mr. Chu that question it meant that Judge Ward's case Mr. Chu/Mr. Baxter brought up at 10:24, was thrown out by the judge at 10:24, so three minutes later, at 10:27, when Mr. Baxter again addressed the judge, what he said was not likely about the Judge Ward case, because that 1960's case was already considered by the judge as a non-issue three minutes earlier.


That is illogical. Mr Baxter was there to present Walker vs Birmingham ... now you have to come up with something completely different for him to discuss so you can be right? Apply Occam's razor."All other things being equal, the simplest solution is the best." You're looking for the most complicated and convoluted solution when the simplest solution is that Judge Folsom was checking to see if Tivo was conceding the design around point before hearing more about Walker vs Birmingham. Gregg and my opinion matches the known without a great deal of gymnastics.


----------



## phrelin

Curtis0620 said:


> After the new deal with Directv, a loss hurts DISH much more than a TiVo loss now.
> 
> TiVo is more likely now to force a shutoff to get what they want, a licensing deal. I would say a few days with the DVR functions shut off will really hurt.


I was surprised TiVo announced the deal with Directv from a strategy standpoint. It seems to me like that a smart CEO would have held that back until it could be used to boost the stock value. I could even see the terms of that deal somehow being brought into the damages issues here.

In any event, it was lost in the noise in terms of stock prices.


----------



## James Long

jacmyoung said:


> Curtis0620 said:
> 
> 
> 
> After the new deal with Directv, a loss hurts DISH much more than a TiVo loss now.
> 
> TiVo is more likely now to force a shutoff to get what they want, a licensing deal. I would say a few days with the DVR functions shut off will really hurt.
> 
> 
> 
> If so then why TiVo's value dropped almost 17% when there was no contempt ruling on 9/4, and DISH's value has been as if TiVo v. E* never existed?
Click to expand...

Huh? What does Tivo's stock price have to do with it? Tivo has not lost nor won anything (and they are not 17% down). Read Curtis' post ... it refers to an actual loss by one of the parties - not a delay.


----------



## James Long

phrelin said:


> I was surprised TiVo announced the deal with Directv from a strategy standpoint. It seems to me like that a smart CEO would have held that back until it could be used to boost the stock value.


I believe they were trying to use it to threaten DISH ... a "real world" contract for a much higher rate than DISH has been charged for their infringement (even if that rate won't be in effect for a while). It also should have offset the "oops there is no verdict" panic (which shouldn't have happened). I believe the drop had more to do with hitting the $9 mark and having computerized traders selling piled on by people seeing a % drop in price bailing out than anything that happened in court.


----------



## jacmyoung

James Long said:


> Huh? What does Tivo's stock price have to do with it? Tivo has not lost nor won anything (and they are not 17% down). Read Curtis' post ... it refers to an actual loss by one of the parties - not a delay.


That was the point, even though on 9/4 TiVo did not lose, the stock went down almost 17%, as several reports correctly pointed out, most of the rise prior to 9/4 was the result of that analyst betting 75% chance a contempt ruling on 9/4, when it did not happen, the stock value dropped accordingly.

After the 9/4 drop, an analyst said but according to what the judge said to the DISH's lawyer in the court room, the ruling would still likely be a contempt, and the next day the stock got up some.

Of course you can believe the computer selling theory. I am inclined to agree with those several reports.


----------



## jacmyoung

The TiVo/D* new deal can certainly be aimed at DISH, both TiVo and D* have interest in doing this, of course TiVo particularly.

The fact TiVo is pulling all stops, is an indication TiVo has a much higher stake in this court outcome than DISH has.

DISH can survive a contempt then no settlement, TiVo cannot survive a no contempt then no settlement.

This is what a poker game is, down to the last few calls, Charlie is a known poker player. It is fascinating to watch.


----------



## CuriousMark

jacmyoung said:


> DISH can survive a contempt then no settlement, TiVo cannot survive a no contempt then no settlement.


While I might agree with the first statement that Dish can survive, it would certainly be hurt, possibly even crippled for a period. But, it could recover and move on.

However, I think you don't understand TiVo well at all to make the second statement. TiVo could and would survive. It might not thrive as quickly or by as large a margin, but TiVo has much more IP than just this one patent and will be the Rolls Royce of DVRs living in peace with the Chevy DVRs made by DTV, Cable, AT&T, Verizon and Dish.


----------



## Curtis52

TiVo has no debt and $100 million in cash (soon to be $300 million). They will be fine no matter what happens.


----------



## jclewter79

According to CNET, Echostar builds the Rolls Royce of DVR's.


----------



## jacmyoung

Curtis52 said:


> TiVo has no debt and $100 million in cash (soon to be $300 million). They will be fine no matter what happens.


Have you read TiVo's latest filings and how fast they have been losing subs? TiVo's numbers makes DISH's 25k net loss look like a winner.


----------



## jacmyoung

Question for the lawyers.

Since TiVo folks believe a prima facie violation should be pretty straight forward, is it technically possible for the judge to rule on contempt issue only, and postpone the ruling on the damages until he gets back to Marshall? In another word, even though there were two motions on 9/4, do rulings on both motions have to come out at the same time?

Even though he said he would be away from Marshall on several big cases, he did say he would try to rule by 10/1, before he heads back to Marshall.


----------



## Curtis52

jacmyoung said:


> Have you read TiVo's latest filings and how fast they have been losing subs? TiVo's numbers makes DISH's 25k net loss look like a winner.


... and yet they turned a profit, have no debt and $100 million in cash. Australia, Mexico, and China are just coming on board along with Comcast, Cox, and DirecTV. Things have never been brighter for TiVo.


----------



## nobody99

jclewter79 said:


> According to CNET, Echostar builds the Rolls Royce of DVR's.


According to nobody99, cnet lost all credibility when it started poisoning search engines with its "comprehensive reviews."

cnet blows.


----------



## nobody99

jacmyoung said:


> Have you read TiVo's latest filings and how fast they have been losing subs? TiVo's numbers makes DISH's 25k net loss look like a winner.


Have you read your post from last week where you already brought this up? Or the replies about how these losses are primarily DirecTV subs who have no choice? After Murdoch bought DirecTV he ended the relationship with TiVo?

Of course you did. But when have facts ever mattered to you?


----------



## jacmyoung

Curtis52 said:


> ... and yet they turned a profit, have no debt and $100 million in cash. Australia, Mexico, and China are just coming on board along with Comcast, Cox, and DirecTV. Things have never been brighter for TiVo.


Right the profit was because TiVo stopped attracting new subs, so all the new sub aquisition costs are gone.

So if DISH last Q stopped adding any new subs, they could have made another $540 million profit, while losing 800k net subs, pretty much the same proportion as TiVo. Would you think that $540 million more profit and 800k sub loss will give a DISH investor any comfort?


----------



## James Long

Curtis52 said:


> ... and yet they turned a profit, have no debt and $100 million in cash. Australia, Mexico, and China are just coming on board along with Comcast, Cox, and DirecTV. Things have never been brighter for TiVo.


That's good. The better off Tivo does the more obvious it is that DISH having their DVRs active isn't hurting the company. Those that believe the court MUST shut off DISH's DVRs because of damage being done to Tivo have not been reading the reports you refer to.


----------



## Herdfan

Greg Bimson said:


> The problem is if DISH/SATS loses. A settlement NOW would be much better financially than if DISH/SATS loses.


And the reply:



jacmyoung said:


> The same can be said about TiVo, don't wait after there is a no contempt.


Who said TiVo won't settle now? A few months ago IIRC, the TiVo CEO said they were still open to a settlement at the orignal offer close to what DirecTV was paying of $1 per sub.

That was a good offer and DISH refused. At this point, if DISH gets off with $2.25 per sub they need to feel lucky.

At this point, TiVo has little motivation to settle, but I would guess they would at a reasonable price.


----------



## CuriousMark

jclewter79 said:


> According to CNET, Echostar builds the Rolls Royce of DVR's.


naw, I thought they considered it to be a Ferrari. They still place it above the TiVo because it has three recordable tuners. It seems they put a great deal of weight on that one feature. I think that causes them to discount some other features a bit too much. Those other features fit more into the creature comfort or bell and whistle category which speaks Rolls to me.

But then, they are the ones with the website.


----------



## Greg Bimson

jacmyoung said:


> Question for the lawyers.
> 
> Since TiVo folks believe a prima facie violation should be pretty straight forward, is it technically possible for the judge to rule on contempt issue only, and postpone the ruling on the damages until he gets back to Marshall? In another word, even though there were two motions on 9/4, do rulings on both motions have to come out at the same time?


I'm no lawyer...

There are two motions, so yes, it is possible for there to be two separate rulings. I believe technically there should be two rulings.

But the "prima facie" argument is less straight forward than the damages issue:


> 1. Provide documents sufficient to determine on a monthly basis for the Stay Period the total number of placements of models DP-501, 508, 510, 721, 921, 522, 625, and 942.
> 2. Provide documents sufficient to determine on a monthly basis for the Stay Period the monthly average number of DVR placements per DISH subscriber household and the churn (i.e., turnover) rate for DISH Network subscribing households receiving or using DVR(s).
> 3. If you contend that TiVo is not entitled to damages during any part of the Stay Period on models DP-501, 508, 510, 721, 921, 522, 625, or 942, based on changes to software, provide documents sufficient to determine the number of units so changed and when the software of each such unit was changed.
> 4. If you contend that TiVo is not entitled to damages during the Stay Period on placements of any DVR models other than models DP-501, 508, 510, 721, 921, 522, 625, and 942, provide documents sufficient to identify such DVRs by model numbers and to determine on a monthly basis the number of DVRs placed.
> 5. Provide documents sufficient to determine on a monthly basis during the Stay Period EchoStar's total expenditure on advertising that mentioned TiVo and/or DVRs.
> 6. If you contend that TiVo is not entitled to damages during the Stay Period on any EchoStar DVR model because you contend that model is not infringing based on the way it operates, provide all documents describing or relating to its operation.





> 1. Provide on a monthly basis for the Stay Period the total number of placements of models DP-501, 508, 510, 721, 921, 522, 625, and 942.
> 2. Provide on a monthly basis for the Stay Period the monthly average number of DVR placements per DISH subscriber household, and the churn (i.e., turnover) rate for DISH Network subscribing households receiving or using digital video recorder(s) ("DVR(s)").
> 3. If you contend that TiVo is not entitled to damages during any part of the Stay Period on models DP-501, 508, 510, 721, 921, 522, 625, or 942, based on changes to software, provide the number of units so changed and when the software of each such unit was changed.
> 4. If you contend that TiVo is not entitled to damages during the Stay Period on placements of any DVR models other than models DP-501, 508, 510, 721, 921, 522, 625, and 942, identify such DVRs by model numbers and provide on a monthly basis the number of such DVRs placed.
> 5. Provide on a monthly basis during the Stay Period EchoStar's total expenditure on advertising that mentioned TiVo and/or DVRs.


Obviously, TiVo received some of the answers to these questions, and then aggregated the amount they were owed.

DISH/SATS obviously simply arrived at their $16 million figure by only addressing the DVR's that were running the old software during the Stay Period.

Too bad DISH/SATS didn't move the court to consider removing those adjudicated receivers with new software from any further damages.

And that is yet another reason DISH/SATS should have notified the court of their work-around, infringing or not.


----------



## dgordo

jacmyoung said:


> Question for the lawyers.
> 
> Since TiVo folks believe a prima facie violation should be pretty straight forward, is it technically possible for the judge to rule on contempt issue only, and postpone the ruling on the damages until he gets back to Marshall? In another word, even though there were two motions on 9/4, do rulings on both motions have to come out at the same time?
> 
> Even though he said he would be away from Marshall on several big cases, he did say he would try to rule by 10/1, before he heads back to Marshall.


Greg is correct, the rulings do not need to come out at the same time.


----------



## jacmyoung

Greg Bimson said:


> I'm no lawyer...
> 
> There are two motions, so yes, it is possible for there to be two separate rulings. I believe technically there should be two rulings.
> 
> But the "prima facie" argument is less straight forward than the damages issue:Obviously, TiVo received some of the answers to these questions, and then aggregated the amount they were owed.
> 
> DISH/SATS obviously simply arrived at their $16 million figure by only addressing the DVR's that were running the old software during the Stay Period.
> 
> Too bad DISH/SATS didn't move the court to consider removing those adjudicated receivers with new software from any further damages.
> 
> And that is yet another reason DISH/SATS should have notified the court of their work-around, infringing or not.


If there is no contempt, DISH's estimate will be correct in principle, because the court cannot order DISH to pay damages for the period they no longer infringed. Though the $16 million is still a minimum, as the judge said.

Since there are two motions, one for contempt, one for damages, of course technically there has to be two rulings, one on contempt or not, the other on how much damages the court will impose.


----------



## jacmyoung

dgordo said:


> Greg is correct, the rulings do not need to come out at the same time.


I don't think Greg really answered the question whether the two rulings may come out at different times, but thank you for answering it for me.

So technically, the judge can first issue the ruling on the contempt motion, and defer the damages ruling for a later day. I doubt he will do that, but if he does so, is my below understanding correct that:

If he rules DISH in contempt, DISH can appeal without delay,

But if he rules DISH not in contempt, TiVo may not appeal right the way, rather wait till the damages ruling is also complete?


----------



## jacmyoung

Herdfan said:


> And the reply:
> 
> Who said TiVo won't settle now? A few months ago IIRC, the TiVo CEO said they were still open to a settlement at the orignal offer close to what DirecTV was paying of $1 per sub.
> 
> That was a good offer and DISH refused. At this point, if DISH gets off with $2.25 per sub they need to feel lucky.
> 
> At this point, TiVo has little motivation to settle, but I would guess they would at a reasonable price.


Charlie likely will not settle unless if he is sure he will get a contempt ruling and the contempt will stick with the appeals court. He has held out for so long, what's another month or so?

But if there is no contempt, all bets are off for TiVo, it will not be TiVo's call how much the licensing will cost, because DISH needs no such license agreement to keep the DVRs running. Without a contempt, the damages cannot be the maximum $220 million either since TiVo's estimate must first assume a contempt ruling.

TiVo was wrong to say even if there is no contempt the damages still must be calculated for the entire stay period from 9/06 to 4/08, no the damages will end at the time the design around was implemented if there is no contempt.


----------



## jacmyoung

James Long said:


> That's good. The better off Tivo does the more obvious it is that DISH having their DVRs active isn't hurting the company. Those that believe the court MUST shut off DISH's DVRs because of damage being done to Tivo have not been reading the reports you refer to.


That is an excellent point when arguing if an injunction is justified or not, but may not be relevant during a contempt decision or damage calculation.


----------



## peak_reception

Please let the transcript be ready soon so we'll have something worth talking about again


----------



## nobody99

(I momentarily suspend my assertion that it doesn't matter what software the boxes are running, they can never have DVR functions again)



jacmyoung said:


> TiVo was wrong to say even if there is no contempt the damages still must be calculated for the entire stay period from 9/06 to 4/08, no the damages will end at the time the design around was implemented if there is no contempt.


Based on what?? DISH's say-so? What if they said they downloaded the new software one day after the injunction issued and TiVo is owed $250? Two days? Dish is _claiming_ they downloaded new software, but how does anyone know this? How can they prove it?

In the meantime, the receivers are _assumed_ infringing until the court says otherwise, so as of today, they are infringing. In a few months, if Folsom creates a new precedent by allowing a change to an injunction on already-adjudicated devices, they would still be infringing through that date.

Only in your wildest dreams does DISH not pay through today (and until they are told by the court that the can have new software)


----------



## James Long

jacmyoung said:


> If there is no contempt, DISH's estimate will be correct in principle, because the court cannot order DISH to pay damages for the period they no longer infringed.
> 
> Since there are two motions, one for contempt, one for damages, of course technically there has to be two rulings, one on contempt or not, the other on how much damages the court will impose.


You are ahead of the case (and not in a good way) again. The contempt question is not a decision of infringement. DISH could be ruled not in contempt and still have infringing products. The question of infringement will have to be dealt with later ... after discovery and after the verdict on the current Motion for Contempt is handed down.

Likewise DISH being found in contempt does not automatically make all of their receivers infringing. The Motion for Contempt issue is "disobeying the court" not infringing.

Regardless of the outcome of the current Motion for Contempt further action will be needed to decide if the receivers still infringe. Contempt of the court is not equal to infringement of the patent.


jacmyoung said:


> James Long said:
> 
> 
> 
> That's good. The better off Tivo does the more obvious it is that DISH having their DVRs active isn't hurting the company. Those that believe the court MUST shut off DISH's DVRs because of damage being done to Tivo have not been reading the reports you refer to.
> 
> 
> 
> That is an excellent point when arguing if an injunction is justified or not, but may not be relevant during a contempt decision or damage calculation.
Click to expand...

It will work well enough when arguing for a stay (assuming DISH is found in contempt).


----------



## Herdfan

jacmyoung said:


> TiVo was wrong to say even if there is no contempt the damages still must be calculated for the entire stay period from 9/06 to 4/08, no the damages will end at the time the design around was implemented if there is no contempt.


This makes the huge assumption that even if DISH is not found in comtempt, the new software may still infringe and will be subject to damages.

And don't forget that pesky hardware claim is still out there and if retried could create additional damages.

Much more downside for DISH than TiVo even if the contempt ruling is in DISH's favor.


----------



## jacmyoung

Herdfan said:


> This makes the huge assumption that even if DISH is not found in comtempt, the new software may still infringe and will be subject to damages.
> 
> And don't forget that pesky hardware claim is still out there and if retried could create additional damages.
> 
> Much more downside for DISH than TiVo even if the contempt ruling is in DISH's favor.


Both you and James are mistaken to say I said if DISH is not in contempt, it means the design around no longer infringe, please quote me for saying that, other wise don't put words in my mouth.

If DISH is not in contempt, it means the design around has created the doubt whether it still infringe or not, and James is also mistaken to say additional discovery may follow to then prove whether the design around is infringing or not.

No it cannot be done in this case anymore. Once DISH is not in contempt, meaning the dessign around is more than colorable, you may not touch the design around anymore. To find out if the design around is still infringing or not, TiVo must file a new suit, independent of this case.

This case is about the infringement of the old design, and the contempt proceeding may determine the colorable difference of the new design around, but this case cannot determine the infringement of the new design around.

The reason if DISH is not in contempt, the court may not impose damages during the period DISH has been using the new design around, is precisely that, you must first prove the new design around still infringing before you may consider damages, and that will have to be done in a new suit.

That is if DISH is not in contempt.


----------



## Curtis52

jacmyoung said:


> No it cannot be done in this case anymore. Once DISH is not in contempt, meaning the dessign around is more than colorable, you may not touch the design around anymore. To find out if the design around is still infringing or not, TiVo must file a new suit, independent of this case.


There are several things wrong with that statement. First, there won't be a finding of "no contempt". There is no such thing. TiVo's motion will either be granted or it won't be granted. Second, if TiVo's motion is not granted it may be on the basis that the court cannot make a prima facie determination as requested by TiVo but must instead look at whether there is a colorable difference and that TiVo would need to file a new motion.


----------



## Greg Bimson

jacmyoung said:


> If DISH is not in contempt, it means the design around has created the doubt whether it still infringe or not, and James is also mistaken to say additional discovery may follow to then prove whether the design around is infringing or not.
> 
> No it cannot be done in this case anymore. Once DISH is not in contempt, meaning the dessign around is more than colorable, you may not touch the design around anymore. To find out if the design around is still infringing or not, TiVo must file a new suit, independent of this case.


Curtis52 has this right...


Curtis52 said:


> Second, if TiVo's motion is not granted it may be on the basis that the court cannot make a prima facie determination as requested by TiVo but must instead look at whether there is a colorable difference and that TiVo would need to file a new motion.


That is where he and I differ.

Let's talk a bit of reality about this contempt hearing for a second. There are only four possible outcomes according to most of us here:

1) Prima facie contempt, for refusing to disable the DVR's as ordered
2) Contempt denied because the DVR's no longer infringe
3) Contempt denied because the DVR's are more than colorably different
4) Contempt denied because the DVR's have been modified

The problem is Joe Blow's four-year old 501. It is a device ruled as an infringement and it is under the court's oversight. Because this contempt hearing is only about rule of law, points 2 and 3 can be thrown out the window, only leaving points one and four...


----------



## jacmyoung

Curtis52 said:


> There are several things wrong with that statement. First, there won't be a finding of "no contempt". There is no such thing. TiVo's motion will either be granted or it won't be granted. Second, if TiVo's motion is not granted it may be on the basis that the court cannot make a prima facie determination as requested by TiVo but must instead look at whether there is a colorable difference and that TiVo would need to file a new motion.


Curtis, we have been on this issue several times already, while your scenario is certainly a possibility, such possibility is very slim, and each time it gets slimmer.

Because as I explained, and of course you don't have to agree:

1) If in a contempt proceeding the judge refuses to *first* look at the modification (design around), he will have abused his discretion, and DISH can appeal on that ground alone, even if the ruling is a no contempt. Meaning through an appeal, DISH can ask the appeals court to force the district court to look at its new design around evidence.

2) The only correct way IMO for your above scenario to be logical is if the judge say I do not believe DISH's new design around evidence at all, TiVo can seek a discovery asking DISH to prove those evidence are in fact true. The problem is TiVo does not dispute the evidence, it is not the court's job to dispute the evidence, it is the parites to do that, since the parties now do not dispute the evidence, the court must rule on the evidence.

3) Without the finding of whether the new design around is colorable or not, the damages cannot be finalized, as I said above, whether the court may impose damages from 10/06 to 04/08, the period DISH had been using the new design around, depends on whether the court finds the new design around more than colorable or not, if mere colorable (a contempt), the damages for this period will be imposed, if more than colorable (no contempt), no damages for this period. The judge had indicated his desire to rule on both motions, he cannot rule on the damages without ruling on the new design around.

So for your scenario to come true, there are just so many obstacles to overcome.


----------



## James Long

jacmyoung said:


> Both you and James are mistaken to say I said if DISH is not in contempt, it means the design around no longer infringe, please quote me for saying that, other wise don't put words in my mouth.


It was quoted in the post you are complaining about ...


jacmyoung said:


> *If there is no contempt*, DISH's estimate will be correct in principle, because the court cannot order DISH to pay damages for the period *they no longer infringed*.


You're CLEARLY tying contempt to infringement. Which is absolutely the WRONG thing to do. No contempt does not mean no infringement.


jacmyoung said:


> If DISH is not in contempt, it means the design around has created the doubt whether it still infringe or not, and James is also mistaken to say additional discovery may follow to then prove whether the design around is infringing or not.


Go back to May 30th and stop posting false information. If you do a little research you'll see that Tivo needs discovery to prove infringement.


> Once DISH is not in contempt, meaning the dessign around is more than colorable, you may not touch the design around anymore. To find out if the design around is still infringing or not, TiVo must file a new suit, independent of this case.


Do you realize what the September 4th hearing was about? It seems that we're back in the realm of making stuff up. Intentionally. There is a word for intentionally making stuff up and a name for those who do it - but I'll refrain from using that term.

Perhaps we should start a fan fiction thread for those who want to discuss the case you're discussing, but we really don't have a forum it would fit in. This thread is for the real Tivo vs Echostar case being tried in our country on our planet.


> This case is about the infringement of the old design, and the contempt proceeding may determine the colorable difference of the new design around, but this case cannot determine the infringement of the new design around.


Sure it can. And when the proceedings get to that point we'll send up a flare. We're not there yet.



Herdfan said:


> And don't forget that pesky hardware claim is still out there and if retried could create additional damages.


There should not be any more damages. The fix that DISH allegedly applied bypasses the infringing hardware as well as removing the infringing code. When the court (eventually) looks at the question of whether the existing infringing products still infringe the entire product can be looked at.


----------



## Curtis52

Remember that this is part of what the judge said was a possibility for the 9-4 hearing:



> ...or whether, as urged by EchoStar, the language of the Court's Permanent Injunction *allows* EchoStar to comply with the spirit of the injunction by changing the software so that the products no longer infringe.


That means that the judge could rule that it is possible for Dish to comply by changing the software. That's the legal question to be resolved. If the judge rules that way then the theoretical legal question will have been resolved and at that point TiVo would have to provide a new motion to look at the differences.


----------



## James Long

Greg Bimson said:


> There are only four possible outcomes according to most of us here:
> 
> 1) Prima facie contempt, for refusing to disable the DVR's as ordered
> 2) Contempt denied because the DVR's no longer infringe
> 3) Contempt denied because the DVR's are more than colorably different
> 4) Contempt denied because the DVR's have been modified


My opinion would be:
Contempt denied because of an effort to no longer infringe. (#4 would be closest.)
Without experts the court can't decide that the new software actually doesn't infringe.

The injunction is on the products ... I don't see how, without experts, the court could rule that an identical receiver with allegedly different software is more than colorably different. From the outside (all that the Judge can see without experts) Joe Blow's receiver is at most only colorably different.


----------



## James Long

jacmyoung said:


> 1) If in a contempt proceeding the judge refuses to *first* look at the modification (design around), he will have abused his discretion,


You are forgetting what the Motion for Contempt is focusing on ... disobeying the order of the court.

When the Supreme Court decided Walker vs Birmingham 40+ years ago they made it clear that the order of a court is sacred, even if it is wrong. The injunction violated was one where a court ordered defendants to follow a law that was later ruled unconstitutional. While you may argue that the injunction in Tivo vs Echostar is improper and unfair if DISH no longer infringes, that is an argument that needs to take place in court ... not an argument for plaintiffs to decide on their own. Dr King decided his own case and was found in contempt with that contempt upheld by SCOTUS. Why shouldn't Mr Ergen and his company be held to the same standard?

It could be argued that Judge Folsom would abuse his discretion by casting aside a Supreme Court verdict and finding no contempt. How can he ignore the bossist of boss courts? That is the dilemma he faces if he rules in Echostar's favor. Explaining why this case does not have to follow that ruling.


----------



## James Long

Curtis52 said:


> Remember that this is part of what the judge said was a possibility for the 9-4 hearing:
> 
> 
> 
> ...or whether, as urged by EchoStar, the language of the Court's Permanent Injunction *allows* EchoStar to comply with the spirit of the injunction by changing the software so that the products no longer infringe.
> 
> 
> 
> That means that the judge could rule that it is possible for Dish to comply by changing the software. That's the legal question to be resolved. If the judge rules that way then the theoretical legal question will have been resolved and at that point TiVo would have to provide a new motion to look at the differences.
Click to expand...

Agreed. A new "Motion for Contempt" alleging that DISH's products continue to infringe. Not a new case, just the next step in this one.


----------



## scooper

Greg Bimson said:


> 1) Prima facie contempt, for refusing to disable the DVR's as ordered
> 2) Contempt denied because the DVR's no longer infringe
> 3) Contempt denied because the DVR's are more than colorably different
> 4) Contempt denied because the DVR's have been modified
> 
> The problem is Joe Blow's four-year old 501. It is a device ruled as an infringement and it is under the court's oversight. Because this contempt hearing is only about rule of law, points 2 and 3 can be thrown out the window, only leaving points one and four...


So continuing from Greg's post - 
3 and 4 are the same thing. It doesn't make sense for 4 to happen without 3 happening as well. 2 is beyond the scope of this trial, and the new S/W would have to have it's own trial.

If 1) happens - I expect Dish to appeal because the S/W modification was not considered

if 4) (and (3)) happens, Tivo will appeal, but the infringement of the new Software will still need it's own trial.

I'm really surprised Dish has NOT sought to change the injunction since the H/W claims were remanded. Unless they're concerned that Folsom would issue a ruling on the spot.


----------



## Greg Bimson

James Long said:


> Agreed. A new "Motion for Contempt" alleging that DISH's products continue to infringe. Not a new case, just the next step in this one.


...and once TiVo accuses product that has never been in front of the court before, that would be the time to use the standards jacmyoung continues to apply for the current contempt order.

After all, if a product has not been in front of the court, it must both infringe and be merely colorably different in order for the injunction to apply to those products.


----------



## jacmyoung

Curtis52 said:


> Remember that this is part of what the judge said was a possibility for the 9-4 hearing:
> 
> That means that the judge could rule that it is possible for Dish to comply by changing the software. That's the legal question to be resolved. If the judge rules that way then the theoretical legal question will have been resolved and at that point TiVo would have to provide a new motion to look at the differences.


Yes but as I said DISH can appeal and try to defeat such process and have the higher court force the district court to rule on the new design around, based on one of the higher court's standards, that is in a contempt proceeding, the court must *first* look at the modificaitons, design around, differences, and determine if the differences are only colorable or not.

Again unless you disagree, now we also know the judge will determine the damages without further discovery, since he must first rule on the design around colorable test, before he rules on the damages, it is almsot certain he will rule on the new design around colorable difference test.

Could have and would have, depend on how things progress. Remember many had insisted, and some still do today, that the design around would not be discussed on 9/4 because it was not on the agenda, yet the design around was discussed on 9/4 in detail, so much so that TiVo's lawyers seven told the reporters they had agreed DISH no longer used the TiVo patented technology.

Of course many of you are saying the reporter misquoted Mr. Chu, but I have yet to see TiVo or Reuters retracting that statement.


----------



## Greg Bimson

Greg Bimson said:


> 3) Contempt denied because the DVR's are more than colorably different
> 4) Contempt denied because the DVR's have been modified
> 
> The problem is Joe Blow's four-year old 501. It is a device ruled as an infringement and it is under the court's oversight. Because this contempt hearing is only about rule of law, points 2 and 3 can be thrown out the window, only leaving points one and four...





scooper said:


> So continuing from Greg's post -
> 3 and 4 are the same thing. It doesn't make sense for 4 to happen without 3 happening as well. 2 is beyond the scope of this trial, and the new S/W would have to have it's own trial.


No, they aren't the same thing...

Change one byte of code, and it is a modification.

If you are stating that DISH/SATS changed a lot of code, and that simply makes it more than colorably different, that is for the courts to decide.

And that is not being decided upon now, unless there was an argument where a party somehow impeached their own testimony, either through briefs leading up to the hearing or the oral arguments on 4 September.


----------



## jacmyoung

James Long said:


> My opinion would be:
> Contempt denied because of an effort to no longer infringe. (#4 would be closest.)
> Without experts the court can't decide that the new software actually doesn't infringe.


Yet the courts had already said, and both Curtis and I had quoted them before, a contempt setting would not be appropriate ... especially when expert testimonies and cross examinations are necessary. In such event, a new suit will have to be filed:

"'the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, 'particularly if expert and other testimony subject to cross-examination would be helpful or necessary.'Arbek Mfg".


----------



## jacmyoung

Greg Bimson said:


> No, they aren't the same thing...
> 
> Change one byte of code, and it is a modification.
> 
> If you are stating that DISH/SATS changed a lot of code, and that simply makes it more than colorably different, that is for the courts to decide.
> 
> And that is not being decided upon now, unless there was an argument where a party somehow impeached their own testimony, either through briefs leading up to the hearing or the oral arguments on 4 September.


It does not matter how much is the change, one byte or a million bytes, as long as there is change, the court must *first* look at the change, and determine if the change is more than colorable or not.


----------



## James Long

Greg Bimson said:


> James Long said:
> 
> 
> 
> Agreed. A new "Motion for Contempt" alleging that DISH's products continue to infringe. Not a new case, just the next step in this one.
> 
> 
> 
> ...and once TiVo accuses product that has never been in front of the court before, that would be the time to use the standards jacmyoung continues to apply for the current contempt order.
> 
> After all, if a product has not been in front of the court, it must both infringe and be merely colorably different in order for the injunction to apply to those products
Click to expand...

Fortunately DISH has made it very easy to see their existing 501/508/510/522/625/721/921/942 products as only colorably different or not different at all from the adjudicated infringing versions of those products.

Once we get into a trial with discovery and experts on the infringement issues the court will be asked the questions jacmyoung loves to focus on. With evidence (and not just the plaintiff's say so) perhaps the court will rule that the new 501/508/510/522/625 products are more than colorably different than the existing 501/508/510/522/625 products (the 721/921/942 products admittedly still infringing and being replaced with new models).

The ViPs are too different. Tivo may try to claim that they are the old software in a new box and are "only colorably different" than the 501/508/510/522/625/721/921/942 products but that is more of an uphill battle. I expect that if Tivo pursues the ViPs they will be told those models are more than colorably different rather quickly by the court.


----------



## James Long

jacmyoung said:


> ... in a contempt proceeding, the court must *first* look at the modificaitons, design around, differences, and determine if the differences are only colorable or not.


Dr King was found in contempt without the court looking at design arounds. Not every contempt proceeding is infringement based.

Think traffic laws for a moment: Imagine that there is a law that requires radar speed guns to be certified and calibrated on a monthly basis and their operators to be certified annually in order for their displayed speed to be used for writing tickets.

The defendant has been called into court for running a stop sign and you're arguing that the officer's radar certification is out of date and his speed gun needs calibrated.

DISH ran a stop sign ... it is IRRELEVANT if their receivers continue to infringe (or not) ... they have to answer for their contempt of the court's injunction.


----------



## Curtis52

jacmyoung said:


> Yes but as I said DISH can appeal and try to defeat such process and have the higher court force the district court to rule on the new design around, based on one of the higher court's standards, that is in a contempt proceeding, the court must *first* look at the modificaitons, design around, differences, and determine if the differences are only colorable or not.


So if the judge rules that he *first* needs to look at the differences before finding contempt then Dish would appeal saying that the judge should have *first* looked at the differences before ruling that he had to *first* look at the differences. Wow.


----------



## jacmyoung

James Long said:


> Dr King was found in contempt without the court looking at design arounds. Not every contempt proceeding is infringement based....


Which is one of the reasons why I speculated the judge had already tossed out that case used by TiVo on 9/4, you just disagree, we will have to see the full transcript to find out.

Dr. King's case was not a patent infringement case. In a patent infringement case, mere violation of the order is not enough, infringement must also be found.


----------



## Ergan's Toupe

jacmyoung said:


> In a patent infringement case, mere violation of the order is not enough, infringement must also be found.


You just made that up, didn't you? :nono:


----------



## James Long

jacmyoung said:


> Which is one of the reasons why I speculated the judge had already tossed out that case used by TiVo on 9/4, you just disagree, we will have to see the full transcript to find out.


Yes ... you have to wildly speculate in order to get around the clear issue of what DISH is being accused of in this contempt hearing. DISH was accused of Contempt of the court's order - not infringement.


----------



## jacmyoung

Curtis52 said:


> So if the judge rules that he *first* needs to look at the differences before finding contempt then Dish would appeal saying that the judge should have *first* looked at the differences before ruling that he had to *first* look at the differences. Wow.


Let me try it again.

You said it is possible the judge may rule DISH not in contempt, but still refuse to look at the new design around evidence, rather tell TiVo go ahead and I will grant you another discovery on the new design around evidence before I must then look at the new design around evidence.

In such case, even though the ruling is a no contempt, DISH can still appeal, because as a non-mover DISH can appeal any decision without delay, DISH does not have to wait for a final decision.

Only that in such case DISH's appeal will be based on the notion that the judge has abused his discretion by refusing to look at the new design around evidence already in front of him, in a contempt proceeding.

What that means is DISH can ask the appeals court to force the judge to look at the new design around evidence, before TiVo will have a chance to seek a new discovery, or in another word DISH can stop TiVo from seeking another discovery, on the ground that the judge has abused his discretion.

The reason is that it is unfair to disregard the new evidence already accepted by both DISH and TiVo, and grant one party another chance to scrutinize the opposing party's evidence. Had TiVo disputed the DISH's new design around evidence all along, it would have been different, but TiVo accepted the evidence, so it will be unfair to not look at the evidence, instead give TiVo another chance to question the evidence.


----------



## jacmyoung

James Long said:


> Yes ... you have to wildly speculate in order to get around the clear issue of what DISH is being accused of in this contempt hearing. DISH was accused of Contempt of the court's order - not infringement.


I can say the same about you, because your notion the judge accepted the Judge Ward case is also based on speculation, regardless how logical you believe your speculation is. Wait to find out, before calling mine "wild speculation."


----------



## jacmyoung

Ergan's Toupe;1787234 said:


> You just made that up, didn't you? :nono:


I have quoted this one from several prior court cases, you just have to go back to find out those quotes. You were a little late in this debate so I do not blame you for having missed those quotes.


----------



## Curtis52

jacmyoung said:


> Let me try it again.
> 
> You said it is possible the judge may rule DISH not in contempt, but still refuse to look at the new design around evidence, rather tell TiVo go ahead and I will *grant you another discovery* on the new design around evidence before I must then look at the new design around evidence.


I didn't read further. No discovery has been granted on the new software.




> In the interest of judicial economy, *the Court will determine first whether EchoStar should be held in contempt* for its failure to disable the DVR functionality in the Infringing Products and for its placement of new infringing DVRs as urged by TiVo or whether, as urged by EchoStar, the language of the Court's Permanent Injunction allows EchoStar to comply with the spirit of the injunction by changing the software so that the products no longer infringe. *TiVo may renew its request to serve limited discovery* regarding EchoStar's modified software *after the Court's decision on the first issue*.


----------



## phrelin

Dr. King's case???? There is so much unique about the reality of this case, it's hard to apply precedents without stepping into a pile.

Ignoring all the stuff related to VOD and the web, Dish Network sells a television signal service and rents you a DVR box if you want one and which you can buy but most don't. TiVo sells a DVR box, with scheduling services. Correlating missed box sales and service revenue between the two isn't simple, particularly when both historically have absorbed "new customer" costs.

Turning off the listed Dish DVR's recording function isn't going to result in revenue for TiVo. In fact, it may alienate potential future customers for the DirecTV TiVo box. That's because turning off the boxes hurts the customers, some of whom might blame Dish but many will blame TiVo. So it may not result in the type of customer loss for Dish Network that those who want to punish Dish think it would.

Logic says that the Judge should say to Dish and TiVo: "I'm going to assume that the listed boxes use the TiVo patent as the jury determined. Dish, pay TiVo $XXX million in license fees for past infringements to date. Then pay TiVo $X per month per box in license fees for future infringements until such time as we go through the process of determining if your new software does not infringe. If and when that is determined, you will then be able to stop paying the license fees. If it is determined that the new software still infringes, I will order Dish to pay licensing fees (retroactive and future) for the new boxes. I'll be gone for a few months, so when I get back we'll start the new process. I will not stay this order on appeal. Thank you gentlemen."

I don't think an appeals court would stay such an order. Charlie would have to make a decision about Dish's relationship to TiVo.

There's nothing in it for anyone to order the box DVR function turned off, the law notwithstanding. And as far as I'm concerned none of the cases discussed here are a close precedent for this situation, which I think is a finding the judge could reasonably make.


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## Curtis52

SCOTUS conference is set for 9-29.

Disposition expected the following Monday.

$$$$$$$$


----------



## peak_reception

James Long said:


> Dr King was found in contempt without the court looking at design arounds. Not every contempt proceeding is infringement based.


 Ah, but this one is. That's why, to me anyway, Walker v. Birmingham is not as winning as one might think. Remember that usually _infringement_ is the "Sine Qua Non" (essential) to a contempt hearing in patent litigation. This case is not usual.

The problem for Dish is that, because they cooked up their "design-around" in secret, in this case infringement is *not* the focus of *this *contempt proceeding. It very well might have been (the focus) had Dish been honest and transparent about their intentions and (Herculean) efforts. But they weren't, and that's where and why they'll pay a heavy price for acting in "bad faith."

Instead, without knowledge of any design-around, the Court proceeded with its Final and Permanent Injunction which stipulated, inter-alia, that DVR functionality must be disabled in the listed Infringing Products (plus no new sales/placements of same). The Injunction was appealed, went up the chain to the CAFC, and back down to Dstrict Court _unchanged_, i.e. *final*.

At that point, with the Injunction in full effect (last Spring), TiVo moved ahead with their contempt motion that Dish was not complying with the Injunction. Thus it moved back into Judge Folsom's hands and we can all agree that he framed the issue for 9-4-08 as follows:



> In the interest of judicial economy, the Court will determine *first* whether EchoStar should be held in contempt for its failure to disable the DVR functionality in the Infringing Products and for its placement of new infringing DVRs as urged by TiVo or whether, as urged by EchoStar, the language of the Court's Permanent Injunction allows EchoStar to comply with the spirit of the injunction by changing the software so that the products no longer infringe.


 That is what was foremost on the agenda going into September 4. Other topics would be touched on which may well factor into future court proceedings, but for 9-4 the above quote, from the Judge himself, is what mattered *first* and most.

Now, unless you think, like Curtis52, that Contempt (if granted) is bad for TiVo and good for Dish :nono2: then you are looking at a nearly certain loss for Dish on this issue alone. Why? Because *absolutely nothing* in "_the language_ of the Court's Permanent Injunction" _allows_ for Dish to secretly and unilaterally create their own _spirit of the injunction_ legal compliance by changing software in the adjudged Infringing Products.

Perhaps if they'd gone to Judge Folsom first then there would be a much better chance for them, but they didn't. And thus, the *first* issue, will be decided against them. As many of us said through the Summer, this would be decided "on or about 9-4." In a 4+ year old court fight "about" means depending on how long Judge Folsom gets around to writing his decision. After all, it's a complicated case (except to jacmyoung) and he (the Judge) has to frame and fortify his decision so that it stands up to scrutiny by higher court(s) to come on appeal.


----------



## Curtis52

peak_reception said:


> Now, unless you think, like Curtis52, that Contempt (if granted) is bad for TiVo and good for Dish :nono2: then you are looking at a nearly certain loss for Dish on this issue alone. Why? Because *absolutely nothing* in "_the language_ of the Court's Permanent Injunction" _allows_ for Dish to secretly and unilaterally create their own _spirit of the injunction_ legal compliance by changing software in the adjudged Infringing Products.


Yep and the StarBrite folks had no leeway whatsover in their injunction. It said that they had to stop selling StarBrite. No ifs ands or buts. They were not found in contempt because they modified the product.

If the court didn't care whether the fielded DVRs could be modified they wouldn't have ordered them modified. They obviously care. They obviously know that modification can prevent infringement. It isn't a concept dropped from Mars. The court will be grateful if the DVRs can be modified to prevent infringement and prevent inconvenience to the subscribers. Progress is a good thing. Celebrate it.


----------



## scooper

phrelin said:


> Dr. King's case???? There is so much unique about the reality of this case, it's hard to apply precedents without stepping into a pile.
> 
> Ignoring all the stuff related to VOD and the web, Dish Network sells a television signal service and rents you a DVR box if you want one and which you can buy but most don't. TiVo sells a DVR box, with scheduling services. Correlating missed box sales and service revenue between the two isn't simple, particularly when both historically have absorbed "new customer" costs.
> 
> Turning off the listed Dish DVR's recording function isn't going to result in revenue for TiVo. In fact, it may alienate potential future customers for the DirecTV TiVo box. That's because turning off the boxes hurts the customers, some of whom might blame Dish but many will blame TiVo. So it may not result in the type of customer loss for Dish Network that those who want to punish Dish think it would.
> 
> Logic says that the Judge should say to Dish and TiVo: "I'm going to assume that the listed boxes use the TiVo patent as the jury determined. Dish, pay TiVo $XXX million in license fees for past infringements to date. Then pay TiVo $X per month per box in license fees for future infringements until such time as we go through the process of determining if your new software does not infringe. If and when that is determined, you will then be able to stop paying the license fees. If it is determined that the new software still infringes, I will order Dish to pay licensing fees (retroactive and future) for the new boxes. I'll be gone for a few months, so when I get back we'll start the new process. I will not stay this order on appeal. Thank you gentlemen."
> 
> I don't think an appeals court would stay such an order. Charlie would have to make a decision about Dish's relationship to TiVo.
> 
> There's nothing in it for anyone to order the box DVR function turned off, the law notwithstanding. And as far as I'm concerned none of the cases discussed here are a close precedent for this situation, which I think is a finding the judge could reasonably make.


If this was a perfect world - this would be the exactly perfect answer. The only thing I would add is that if the new software is found not infringing, then the licensing fees are to be paid BACK to Dish on a per unit basis - meaning that as each unit got the non-infringing software, it would then not be required to pay the licensing fee.


----------



## Ergan's Toupe

Curtis52 said:


> Yep and the StarBrite folks had no leeway whatsover in their injunction. It said that they had to stop selling StarBrite. No ifs ands or buts. They were not found in contempt because they modified the product.
> 
> If the court didn't care whether the fielded DVRs could be modified they wouldn't have ordered them modified. They obviously care. They obviously know that modification can prevent infringement. It isn't a concept dropped from Mars. The court will be grateful if the DVRs can be modified to prevent infringement and prevent inconvenience to the subscribers. Progress is a good thing. Celebrate it.


Do you still think that Dish is happy with the injunction?


----------



## James Long

peak_reception said:


> James Long said:
> 
> 
> 
> Dr King was found in contempt without the court looking at design arounds. Not every contempt proceeding is infringement based.
> 
> 
> 
> Ah, but this one is. That's why, to me anyway, Walker v. Birmingham is not as winning as one might think.
Click to expand...

Calling the pending Motion for Contempt an infringement hearing or patent case is like saying Walker vs Birmingham was a free speech case. It wasn't.

The issue is contempt of the court's order. That has been the issue since the May 30th conference when Judge Folsom ordered (on June 5th) that contempt on the face of the injunction would be dealt with FIRST ... before any discovery on infringement issues. Being held in contempt of the court's order "disable the DVR functionality" does not require infringement ... all it requires is a judge that sees his orders as binding as SCOTUS saw the order in Walker vs Birmingham.

Or on the contrary, for Judge Folsom to have a compelling reason to go against a Supreme Court ruling that has stood for over 40 years. 

(The easy answer would be for Judge Folsom to say the injunction was wrong and overbearing ... but I'd bet against that. At best I believe he would say that he never intended to make existing products permanently unmodifiable. In other words, Echostar complied with the intent of the injunction.)


----------



## dgordo

Curtis52 said:


> SCOTUS conference is set for 9-29.
> 
> Disposition expected the following Monday.
> 
> $$$$$$$$


No. 08-179 
Title: EchoStar Communications Corporation, et al., Petitioners 
v. 
TiVo, Inc.

Docketed: August 13, 2008 
Lower Ct: United States Court of Appeals for the Federal Circuit 
Case Nos.: (2006-1574) 
Decision Date: January 31, 2008 
Rehearing Denied: April 11, 2008

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ 
Jun 26 2008 Application (08A1) to extend the time to file a petition for a writ of certiorari from July 10, 2008 to August 11, 2008, submitted to The Chief Justice. 
Jun 27 2008 Application (08A1) granted by The Chief Justice extending the time to file until August 11, 2008. 
Aug 11 2008 Petition for a writ of certiorari filed. (Response due September 12, 2008) 
Aug 29 2008 Brief of respondent TiVo, Inc. in opposition filed. 
*Sep 10 2008 DISTRIBUTED for Conference of September 29, 2008.*


----------



## scooper

dgordo said:


> No. 08-179
> Title: EchoStar Communications Corporation, et al., Petitioners
> v.
> TiVo, Inc.
> 
> Docketed: August 13, 2008
> Lower Ct: United States Court of Appeals for the Federal Circuit
> Case Nos.: (2006-1574)
> Decision Date: January 31, 2008
> Rehearing Denied: April 11, 2008
> 
> ~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
> Jun 26 2008 Application (08A1) to extend the time to file a petition for a writ of certiorari from July 10, 2008 to August 11, 2008, submitted to The Chief Justice.
> Jun 27 2008 Application (08A1) granted by The Chief Justice extending the time to file until August 11, 2008.
> Aug 11 2008 Petition for a writ of certiorari filed. (Response due September 12, 2008)
> Aug 29 2008 Brief of respondent TiVo, Inc. in opposition filed.
> *Sep 10 2008 DISTRIBUTED for Conference of September 29, 2008.*


So this means SCOTUS is hearing the case ? 
Or is this just a step on the way ?


----------



## peak_reception

Curtis52 said:


> Yep and the StarBrite folks had no leeway whatsover in their injunction. It said that they had to stop selling StarBrite. No ifs ands or buts. They were not found in contempt because they modified the product.


 Link to that injunction? Perhaps, unlike EchoStar, they made a _good faith_ effort to no longer infringe? I would also like to see how the judge in that case framed the issue leading into the Contempt Hearing. Cases have similarities and differences. You are highlighting the fact that in another case there was a violation of a court's injunction which didn't result in contempt. I am highlighting Judge Folsom's approach to *this* contempt hearing in *this* case. I know it's uncomfortable for you. You'd rather talk about any other case but this one. But Judge Folsom is the controlling authority, for now, and he has framed this issue, not anyone else. He's the one who gets to judge.



> If the court didn't care whether the fielded DVRs could be modified they wouldn't have ordered them modified.


 They were ordered to be *shut down*, not modified in some other way.



> They obviously care. They obviously know that modification can prevent infringement. It isn't a concept dropped from Mars.


 They?? He. Judge Folsom. How can he know about an infringement effort if the infringer doesn't tell him? How can he determine if the effort is in good faith and *fair* to all involved if he is not informed? Oh yeah, he was supposed to spend his vacation time reading through all of Dish's SEC filings :lol: . Judge Folsom is the one who gets to decide what's fair, what's allowed, what isn't, what's in good faith, what isn't, etc. I know Charlie and Co. love to take the law into their own hands and decide things all on their own, but that's not how it works. The Judge decides. If he is in error then higher judges can and will correct his ruling.



> The court will be grateful if the DVRs can be modified to prevent infringement and prevent inconvenience to the subscribers. Progress is a good thing. Celebrate it.


 Keep drinking the Kool-Aid Curtis. The games are coming to an end soon  . Sure Charlie will appeal, but having pulled the wool over the CAFC's eyes once already (by crying wolf about what a disaster the injunction would mean for them...(((if obeyed. wink wink))) it wouldn't surprise me if they don't even get a stay pending appeal this second time around. And even if they do, they'll probably lose the appeal due to all the games they've played. Will have to read Judge Folsom's decision first though to see how sturdy it is.


----------



## James Long

SCOTUS is thinking about it on September 29th ... we'll find out IF SCOTUS will hear the case (the disposition) after that.


----------



## dgordo

scooper said:


> So this means SCOTUS is hearing the case ?
> Or is this just a step on the way ?


The conference is when the justices get together in private to decide if they will allow the case to proceed. If 4 justices vote to grant the petition, then the case proceeds to the briefing stage, if not the case ends.


----------



## peak_reception

James Long said:


> Calling the pending Motion for Contempt an infringement hearing or patent case is like saying Walker vs Birmingham was a free speech case. It wasn't.


 Good Point. Ok you've convinced me 



> Or on the contrary, for Judge Folsom to have a compelling reason to go against a Supreme Court ruling that has stood for over 40 years.


 If it's so bullet-proof then why haven't all the other infringers been caught up in it when trying to work-around injunctions which say they have to stop this and that? Like Star Brite e.g. Is Chu the only genius who's ever thought of using Walker v. Birmingham to hold injunction violators' feet to the fire?



> (The easy answer would be for Judge Folsom to say the injunction was wrong and overbearing ... but I'd bet against that. At best I believe he would say that he never intended to make existing products permanently unmodifiable. In other words, Echostar complied with the intent of the injunction.)


 Even that's hoping for the moon.


----------



## Ergan's Toupe

peak_reception said:


> If it's so bullet-proof then why haven't all the other infringers been caught up in it when trying to work-around injunctions which say they have to stop this and that? Like Star Brite e.g. Is Chu the only genius who's ever thought of using Walker v. Birmingham to hold injunction violators' feet to the fire?


I think we can all agree that nothing would make Folsom happier than a settlement.

How exactly is ruling against his own injunction going to force Charlie to settle?

I think it's pretty obvious that Folsom is going to rule contempt and hope that it pushes the "stubborn" one to come up with some kind of response that doesn't involve litigation.


----------



## Ergan's Toupe

James Long said:


> SCOTUS is thinking about it on September 29th ... we'll find out IF SCOTUS will hear the case (the disposition) after that.


If Tivo waives their right to respond, this will be decided on Oct. 6th.

I pray that Tivo shuts up and lets the SCOTUS toss this stupid waste of time and money as soon as possible. :hurah:


----------



## scooper

There is probably zilch the court could do to force Echostar to settle. If Tivo wants a settlement - well, James has already laid it out what needs to be in it.


----------



## jacmyoung

scooper said:


> So this means SCOTUS is hearing the case ?
> Or is this just a step on the way ?


I could be wrong but I think DISH has passed the first test, usually the cases are thrown out without any conference or depositions.


----------



## jacmyoung

Curtis52 said:


> Yep and the StarBrite folks had no leeway whatsover in their injunction. It said that they had to stop selling StarBrite. No ifs ands or buts. They were not found in contempt because they modified the product.
> 
> If the court didn't care whether the fielded DVRs could be modified they wouldn't have ordered them modified. They obviously care. They obviously know that modification can prevent infringement. It isn't a concept dropped from Mars. The court will be grateful if the DVRs can be modified to prevent infringement and prevent inconvenience to the subscribers. Progress is a good thing. Celebrate it.


That pretty much sums it up


----------



## dgordo

jacmyoung said:


> I could be wrong but I think DISH has passed the first test, usually the cases are thrown out without any conference or depositions.


All certs go to conference.


----------



## jacmyoung

Curtis52 said:


> I didn't read further. No discovery has been granted on the new software.


You should , then you would have understood.

DISH will do anything they can to defeat any additional new discovery by TiVo. If your scenario comes true, DISH will have a perfect reason to appeal and try to defeat any further attempt for new discovery by TiVo, that was my point.


----------



## Ergan's Toupe

scooper said:


> There is probably zilch the court could do to force Echostar to settle. If Tivo wants a settlement - well, James has already laid it out what needs to be in it.


Don't get me wrong, I agree that the courts can't force Charlie to write a check, but don't kid yourself, Folsom could make it very uncomfortable for Charlie until he sees the light on his own. 

Tivo has stated that they *were* willing to settle for a buck a box. Charlie foolishly decided to go all in and now it is going to cost him a lot more to see Tivo's cards.

Bottom line is it's going to cost Chuckles a lot more than a buck now, so when your rates go up to cover the costs, don't blame Tivo. Blame the "stubborn" one. :lol:


----------



## dgordo

A petition for a writ of certiorari will
be granted only for compelling reasons. The following, although
neither controlling nor fully measuring the Court’s
discretion, indicate the character of the reasons the Court
considers:
(a) a United States court of appeals has entered a decision
in conflict with the decision of another United
States court of appeals on the same important matter;
has decided an important federal question in a way that
conflicts with a decision by a state court of last resort;
or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure
by a lower court, as to call for an exercise of
this Court’s supervisory power;
(b) a state court of last resort has decided an important
federal question in a way that conflicts with the
decision of another state court of last resort or of a
United States court of appeals;
(c) a state court or a United States court of appeals
has decided an important question of federal law that
has not been, but should be, settled by this Court, or
has decided an important federal question in a way that
conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law.


----------



## jacmyoung

dgordo said:


> All certs go to conference.


Thank you again.

You did not answer my other question, if the judge only makes a ruling on the contempt issue, and defer the damages ruling in a month or two, is it true that:

1) If a contempt DISH can appeal without delay,

2) If no contempt TiVo will have to wait for the other ruling to finalize before they may appeal?


----------



## James Long

peak_reception said:


> If it's so bullet-proof then why haven't all the other infringers been caught up in it when trying to work-around injunctions which say they have to stop this and that? Like Star Brite e.g. Is Chu the only genius who's ever thought of using Walker v. Birmingham to hold injunction violators' feet to the fire?


Good question ... I can't believe that Chu is the first or only to bring up Walker vs Birmingham, but this case may be unique in the way the injunction was worded to disable functionality on an existing placed product.

The other injunctions focused on not selling infringing products and where overturned it turned out that there were new products being sold that were not infringing. We don't have new products in this case. We have a defendant who would LIKE to redefine their product to be DVR software instead of being a DVR unit ... but the named infringing product isn't software, it is receivers.

The main failing is on the simple issue of disabling the DVR functionality. Did DISH do that?


----------



## Ergan's Toupe

jacmyoung said:


> I could be wrong but I think DISH has passed the first test, usually the cases are thrown out without any conference or depositions.


Yes, you are right, you are wrong.


----------



## jacmyoung

Ergan's Toupe;1787466 said:


> Don't get me wrong, I agree that the courts can't force Charlie to write a check...


Yes the court can!


----------



## dgordo

jacmyoung said:


> Thank you again.
> 
> You did not answer my other question, if the judge only makes a ruling on the contempt issue, and defer the damages ruling in a month or two, is it true that:
> 
> 1) If a contempt DISH can appeal without delay,


correct



jacmyoung said:


> 2) If no contempt TiVo will have to wait for the other ruling to finalize before they may appeal?


No, these are separate motions, tivo could appeal a denial of contempt immediately.


----------



## Curtis52

jacmyoung said:


> DISH will do anything they can to defeat any additional new discovery by TiVo.


*Additional* to what? No discovery whatsoever has been granted on the new software. None. Nada.



> "discovery regarding EchoStar's allegedly new software, is denied at this time."


----------



## James Long

Ergan's Toupe;1787444 said:


> If Tivo waives their right to respond, this will be decided on Oct. 6th.


That isn't the process. Tivo already responded (August 29th). If SCOTUS decides to take this case it will be part of next year's court schedule and won't be decided for months.


scooper said:


> There is probably zilch the court could do to force Echostar to settle. If Tivo wants a settlement - well, James has already laid it out what needs to be in it.


Exhoneration. At minimum a perpetual license for the software without monthly fees. DISH wants to win.

If Tivo offers DISH a win I can see DISH accepting a settlement - but don't expect any "Tivo drops the case and DISH admits no wrongdoing" deal. DISH wants to be right.


----------



## jacmyoung

James Long said:


> ...The main failing is on the simple issue of disabling *the DVR functionality*. Did DISH do that?


Yes DISH did, they disabled "the DVR functions" under the old design, and then replaced them with the DVR functions under the new design around.

I know it is a difficult "wild concept" for most people to consider, but remember, it was an even more difficult wilder concept for the patentee in the StarBrite case to understand, when the court said, when we said to stop those products by names, you could not "possibly" have interpreted as we saying to stop the products, rather to interpret the order as to stop the "internal formulation", even though no where in the order even remotely mentioned the term "internal formulation".


----------



## jacmyoung

Curtis52 said:


> *Additional* to what? No discovery whatsoever has been granted on the new software. None. Nada.


I will try it one more time but that is it, ok?

You said it is possible for the judge to find no contempt, and then allow TiVo to seek new discovery by TiVo to get more evidence on the new software so he can then look at the evidence in a later time.

Correct so far? Because if that was not what you said, you may want to make it clear.

To which I said, if the judge does that, DISH can simply appeal and prevent such process from taking place. Because DISH can argue that the judge has abused his discretion for not looking at the new design around evidence already available to him, without any dispute as to the validity of the evidence. It will be wrong to grant TiVo any further discovery in the future.

The evidence already in front of the court must be used to make the ruling. No additional discovery may be allowed.


----------



## Ergan's Toupe

James Long said:


> That isn't the process. Tivo already responded (August 29th). If SCOTUS decides to take this case it will be part of next year's court schedule and won't be decided for months.


If Tivo doesn't respond before Sept. 29th, SCOTUS will decide on Oct. 6th to take this case or not.

It's "yes" or "no" on Oct. 6th as long as Tivo shuts up.

<<Generally, if a case is considered at a Conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10:00 a.m. the following Monday.>>

http://www.supremecourtus.gov/casedistribution/casedistributionschedule.html


----------



## James Long

jacmyoung said:


> Yes DISH did, they disabled "the DVR functions" under the old design, and then replaced them with the DVR functions under the new design around.


I'll leave that shell game for the court to ridicule.


> I know it is a difficult "wild concept" for most people to consider, but remember, it was a even more difficult wilder concept for the patentee in the StarBrite case to understood, when the court said, when we said to stop those products by names, you could not "possibly" have interpreted as we saying to stop the products, rather to interpret the order as to stop the "internal formulation", even though no where in the order even remotely mentioned the term "internal formulation".


Starbrite stopped selling those products by name.
They then started selling new products by the same name.
They had proof that they were entirely different products that did not infringe.

DISH never stopped selling their products by name (other than those discontinued in the normal course of business) and continued to place and replace those products.

Starbrite was not told to remove the cleaning ability of their product.
DISH was told to remove the DVR functionality of their product.


----------



## Curtis52

jacmyoung said:


> You said it is possible for the judge to find no contempt, and then allow TiVo to seek new discovery by TiVo to get more evidence on the new software so he can then look at the evidence in a later time.


Absolutely not. The judge has never granted any discovery whatsoever on the new software. 


> "discovery regarding EchoStar's allegedly new software, is *denied* at this time."


----------



## James Long

Ergan's Toupe;1787491 said:


> If Tivo doesn't respond before Sept. 29th, SCOTUS will decide on Oct. 6th to take this case or not.
> 
> It's "yes" or "no" on Oct. 6th as long as Tivo shuts up.
> 
> <<Generally, if a case is considered at a Conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10:00 a.m. the following Monday.>>
> 
> http://www.supremecourtus.gov/casedistribution/casedistributionschedule.html


Tivo has already had their opportunity to respond. They availed themselves of that opportunity and their response is a matter of record.

There is no "If Tivo ..." left in the matter. Neither party has any more say (unless DISH wants to withdraw their request). Both sides are simply awaiting the decision on if the case will be heard before the court.

(BTW: Don't read "generally" as a guarantee of a Monday release either.)


----------



## Ergan's Toupe

James Long said:


> Tivo has already had their opportunity to respond. They availed themselves of that opportunity and their response is a matter of record.
> 
> There is no "If Tivo ..." left in the matter. Neither party has any more say (unless DISH wants to withdraw their request). Both sides are simply awaiting the decision on if the case will be heard before the court.
> 
> (BTW: Don't read "generally" as a guarantee of a Monday release either.)


I see absolutely no reason for SCOTUS to take this case. Unless someone can give me a reason why they think SCOUTS will hear this waste of time, It will be denied on Oct. 6th. IMO of course.


----------



## Herdfan

James Long said:


> DISH wants to be right.


No matter what the cost or risk. :eek2:


----------



## Greg Bimson

Curtis52 said:


> Yep and the StarBrite folks had no leeway whatsover in their injunction. It said that they had to stop selling StarBrite. No ifs ands or buts. They were not found in contempt because they modified the product.
> 
> If the court didn't care whether the fielded DVRs could be modified they wouldn't have ordered them modified. They obviously care. They obviously know that modification can prevent infringement. It isn't a concept dropped from Mars. The court will be grateful if the DVRs can be modified to prevent infringement and prevent inconvenience to the subscribers. Progress is a good thing. Celebrate it.





peak_reception said:


> If it's so bullet-proof then why haven't all the other infringers been caught up in it when trying to work-around injunctions which say they have to stop this and that? Like Star Brite e.g. Is Chu the only genius who's ever thought of using Walker v. Birmingham to hold injunction violators' feet to the fire?





James Long said:


> Or on the contrary, for Judge Folsom to have a compelling reason to go against a Supreme Court ruling that has stood for over 40 years.


It is because every standard being used, KSM, StarBrite, etc., are all accusing infringers of selling products that were not adjudged as infringements.

As a plaintiff I have an injunction enjoining an infringer on infringer's product X. That final judgment and permanent injunction contains three orders: one to pay up for damages, one to prohibit infringement, and a third to disable product X found infringing with end users.

So the infringer does stop sales of product X, and modifies it, becoming product X2, and starts selling X2.

Now X2 has not been before the court. *In order to accuse X2 of contempt, both infringement of the patent and lack of colorable difference between the adjudged product and modified product must be present.

Meanwhile, there has been no modification to product X with the end users, and they are not disabled. That would automatically be a prima facie violation of the injunction, as product X has not been disabled.

However, what concerns me more is the belief that if the infringer changed ONE BYTE of product X firmware at the end users, those which have been adjudicated as infringements, that a ONE BYTE modification allows a ruling of infringement and an injunction to become unenforceable.

It would be a target that never ends, as ONE BYTE modifications will be continual. It will gum up our already overloaded judicial system.*


----------



## Curtis52

Greg Bimson said:


> It would be a target that never ends, as ONE BYTE modifications will be continual. It will gum up our already overloaded judicial system.


The alternative would be to ignore reality. Courts need to keep up with technology and not be a millstone. If infringement can be ended instantly then the courts need to recognize that. The courts aren't our masters. They work for us. If they are overloaded it is because they need to work smarter (and may need more money) it isn't because they need to ignore an honest attempt to correct infringement in violation of legal precedent.


----------



## Greg Bimson

Curtis52 said:


> The alternative would be to ignore reality. Courts need to keep up with technology and not be a millstone. If infringement can be ended instantly then the courts need to recognize that.


Ahh, but therein lies the question: has infringement ended?

Do we give the benefit of the doubt to an infringer on products already adjudged as infringements? After all, according to TiVo, the modified DVR's still infringe. Whether merely or more than colorably different, allowing a judgment to stand and an injunction to be enforced on those products should NOT have to restart the litigation.

Besides, if "infringement can be ended instantly", one would think that DISH/SATS would have informed the court...


----------



## scooper

Greg Bimson said:


> It is because every standard being used, KSM, StarBrite, etc., are all accusing infringers of selling products that were not adjudged as infringements.
> 
> As a plaintiff I have an injunction enjoining an infringer on infringer's product X. That final judgment and permanent injunction contains three orders: one to pay up for damages, one to prohibit infringement, and a third to disable product X found infringing with end users.
> 
> So the infringer does stop sales of product X, and modifies it, becoming product X2, and starts selling X2.
> 
> Now X2 has not been before the court. *In order to accuse X2 of contempt, both infringement of the patent and lack of colorable difference between the adjudged product and modified product must be present.
> 
> Meanwhile, there has been no modification to product X with the end users, and they are not disabled. That would automatically be a prima facie violation of the injunction, as product X has not been disabled.
> 
> However, what concerns me more is the belief that if the infringer changed ONE BYTE of product X firmware at the end users, those which have been adjudicated as infringements, that a ONE BYTE modification allows a ruling of infringement and an injunction to become unenforceable.
> 
> It would be a target that never ends, as ONE BYTE modifications will be continual. It will gum up our already overloaded judicial system.*


*

There needs to be a reasonable middle ground on this. While I agree that a 1 byte change is technically a modification, it really isn't in the scope and spirit of what I would term an honest effort to make the product not infringing anymore either.

In light of this, I would agree with curtis52's post that the courts need to figure out how to deal with changes like this in a MUCH faster, more efficient manner - or they risk becoming irrelevant. I think SCOTUS should hear this case on this basis alone.*


----------



## Curtis52

Greg Bimson said:


> Besides, if "infringement can be ended instantly"


It isn't an "if". Most people accept the idea of updating software instantly. I'm pretty sure it happens fairly frequently.


----------



## Curtis52

scooper said:


> There needs to be a reasonable middle ground on this. While I agree that a *1 byte change* is technically a modification, it really isn't in the scope and spirit of what I would term an honest effort to make the product not infringing anymore either.


Yep. That's the whole reason for the colorable difference test.


> An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be *too insubstantial* to avoid contempt.


----------



## scooper

Curtis52 said:


> It isn't an "if". Most people accept the idea of updating software instantly. I'm pretty sure it happens fairly frequently.


Greg, Surely you use Windows Update on your Microsoft WIndows PCs ? Well - this is the same idea, except the means of transmission is in the data stream from Echostar over the satellite.


----------



## nobody99

scooper said:


> Greg, Surely you use Windows Update on your Microsoft WIndows PCs ? Well - this is the same idea, except the means of transmission is in the data stream from Echostar over the satellite.


And DISH should have suggested this in the injunction language. They didn't. If they had, TiVo would have had the opportunity to argue for particular language - for example, to suggest that the court has to approve any changes before it "counts." You are suggesting that DISH can modify the injunction's meaning afer the fact. That's not allowed for a reason: the judicial system gives both sides a chance to argue their position.

There's already a way around the injunction for new products. The injunction even specifically allows it.

Curtis and jacmyoung continue to be completely wrong about their interpretation of what an KSM means. I'll be proven right soon enough :lol:


----------



## James Long

Curtis52 said:


> Greg Bimson said:
> 
> 
> 
> Besides, if "infringement can be ended instantly"
> 
> 
> 
> It isn't an "if". Most people accept the idea of updating software instantly. I'm pretty sure it happens fairly frequently.
Click to expand...

Updating software in and of itself does not end infringement. There has to be some showing that the new software modifies the product to the extent that the product no longer infringes on the patent claims.

It doesn't help that DISH closely held the secret of new software. If they could go public in SEC filings they SHOULD have given the court the courtesy of an update.


----------



## Greg Bimson

Curtis52 said:


> It isn't an "if". Most people accept the idea of updating software instantly. I'm pretty sure it happens fairly frequently.





scooper said:


> Greg, Surely you use Windows Update on your Microsoft WIndows PCs ? Well - this is the same idea, except the means of transmission is in the data stream from Echostar over the satellite.


I can agree with this.

HOWEVER...


> 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.





> 61 - An *apparatus* for the simultaneous storage and play back of multimedia data, comprising:
> a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> a source object, wherein said source object extracts video and audio data from said physical data source;
> 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;
> 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;
> 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.


Note how claim 31 is a "process" and claim 61 is an "apparatus". Just because the software is changed doesn't mean the process nor the apparatus were changed so they no longer infringe.

Although DISH/SATS may state their software may no longer infringe, it isn't only the software that is the problem here. The *entire receiver* was found to infringe these two claims, and changing the software most likely did not change the infringement by those receivers.


----------



## nobody99

Suppose that Judge Folsom had ruled that the receivers must be destroyed. Suppose he even lays it out - they must be delivered to DVR Shredders Inc., 1001 Industrial Boulevard, Oakland, CA by June 1, 2006.

Suppose they just ignored the order. They later installed new software that they claim no longer infringe.

Contempt?


----------



## nobody99

scooper said:


> In light of this, I would agree with curtis52's post that the courts need to figure out how to deal with changes like this in a MUCH faster, more efficient manner - or they risk becoming irrelevant. I think SCOTUS should hear this case on this basis alone.


One thing that's really a danger for DISH is that this is becoming a really high stakes game for them. If SCOTUS does hear the case, and rules against DISH, you're looking at probably close to a $1 billion in damages. $6 per month x 4+ million receivers x 4 years.

If they lose, they are going to pay treble damages for ignoring the injunction.


----------



## scooper

Greg Bimson said:


> Ahh, but therein lies the question: has infringement ended?
> 
> Do we give the benefit of the doubt to an infringer on products already adjudged as infringements? After all, according to TiVo, the modified DVR's still infringe. Whether merely or more than colorably different, allowing a judgment to stand and an injunction to be enforced on those products should NOT have to restart the litigation.
> 
> Besides, if "infringement can be ended instantly", one would think that DISH/SATS would have informed the court...


Infringement could be ended that quick - if they would have had the replacement ready to go. It takes time to come up with the new idea and figuring out how to implement over their different H/W platforms. Each of them would need their own fine tuning of such a CPU intensive process.

One of our other posters has already said why they would not notify the court until it is complete / ready to go - besides, the court DID ask Echostar if they could "disable the DVR function" remotely and Echostar responded affirmative - one could presume that something like this is also possible. Afterall - we have lots of experiance in releasing new versions of software for our satellite recievers - and making this kind of change would be like doing a service pack on Windows. From this, I would say Judge Folsom was more like acknowledging that something like this is possible - he just didn't expect Echostar to go ahead and implement it already.


----------



## Curtis52

*Brrring* *Brrriiiing* 

"Judge Folsom's office"

Hello, this is one of the attorneys for Echostar. I don't know whether you guys remember... hello... oh I thought we got disconnected. Anywho, I know it's been awhile but I thought the judge might want to be updated.

He's there? great,

Hello Judge Folsom? I just wanted to let you know that we've got some new software.

Well, yes it's stayed. 

You don't have the ball? Because it's stayed? Nothing to do with you? Nothing on your docket?

Ok then. 

Sorry to bother you.

See you soon.


----------



## scooper

Greg Bimson said:


> I can agree with this.
> 
> HOWEVER...Note how claim 31 is a "process" and claim 61 is an "apparatus". Just because the software is changed doesn't mean the process nor the apparatus were changed so they no longer infringe.
> 
> Although DISH/SATS may state their software may no longer infringe, it isn't only the software that is the problem here. The *entire receiver* was found to infringe these two claims, and changing the software most likely did not change the infringement by those receivers.


Do we need to remind you AGAIN that the hardware claims were remanded and therefore do not currently carry any weight until ruled on again ?


----------



## James Long

So, suppose Judge Folsom had read the SEC filings ...
2006 Annual Report (Filed 3/6/07)
The risks and uncertainties include, but are not limited to, the following:
* absent reversal of the jury verdict in our Tivo patent infringement case, and if we are unable to successfully implement alternative technology, we will be required to pay substantial damages as well as materially modify or eliminate certain user-friendly digital video recorder features that we currently offer to consumers, and we could be forced to discontinue offering digital video recorders to our customers completely, any of which could have a significant adverse affect on our business;

_During April 2006, a Texas jury concluded that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. If the verdict is upheld on appeal and we are not able to successfully implement alternative technology, 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._

If the Tivo jury verdict is upheld on appeal, we could be required to pay substantial damages, and if we were not able to successfully implement alternative technology (including the successful defense of any challenge that such technology infringes Tivo's patent), we could also 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.

_Tivo Inc._
During April 2006, a Texas jury concluded that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. The Texas court subsequently issued an injunction prohibiting us from offering DVR functionality. A Court of Appeals has stayed that injunction during the pendency of our appeal.

In accordance with Statement of Financial Accounting Standards No. 5, "Accounting for Contingencies" ("SFAS 5"), we recorded a total reserve of $94.0 million in "Tivo litigation expense" on our Condensed Consolidated Statement of Operations to reflect the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court through September 8, 2006. Based on our current analysis of the case, including the appellate record and other factors, we believe it is more likely than not that we will prevail on appeal. Consequently, we are not recording additional amounts for supplemental damages or interest subsequent to the September 8, 2006 judgment date. If the verdict is upheld on appeal, the $94.0 million amount would increase by approximately $35.0 million through 2007.

If the verdict is upheld on appeal and we are not able to successfully implement alternative technology (including the successful defense of any challenge that such technology infringes Tivo's patent), we would owe substantial additional damages and we could also 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.

TiVo litigation expense $93,969,000 for 2006​A year later:
2007 Annual Report (Amended - Filed 3/3/08)
The risks and uncertainties include, but are not limited to, the following:
* if we are unsuccessful in subsequent appeals in the Tivo case or in defending against claims that our alternate technology 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. The adverse affect on our business could be material. We could also have to pay substantial additional damages.

_During January 2008, the U.S. Court of Appeals upheld a Texas jury verdict that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo._

If we are unsuccessful in subsequent appeals or in defending against claims that our alternate technology 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.

_Tivo Inc._
On January 31, 2008, the U.S. Court of Appeals for the Federal Circuit affirmed in part and reversed in part the April 2006 jury verdict concluding that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. In its decision, the Federal Circuit affirmed the jury's verdict of infringement on Tivo's "software claims," upheld the award of damages from the district court, and ordered that the stay of the district court's injunction against us, which was issued pending appeal, will dissolve when the appeal becomes final. The Federal Circuit, however, found that we did not literally infringe Tivo's "hardware claims," and remanded such claims back to the district court for further proceedings. We are appealing the Federal Circuit's ruling.

In addition, we have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational and has been automatically downloaded to current customers (the "Design-Around"). We have formal legal opinions from outside counsel that conclude that our Design-Around does not infringe, literally or under the doctrine of equivalents, either the hardware or software claims of Tivo's patent.

In accordance with Statement of Financial Accounting Standards No. 5, "Accounting for Contingencies" ("SFAS 5"), we recorded a total reserve of $128 million in "Litigation expense" on our Consolidated Balance Sheets to reflect the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. This amount also includes the estimated cost of any software infringement prior to the Design-Around, plus interest subsequent to the jury verdict.

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 unsuccessful in subsequent appeals or in defending 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.

_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.
​I suppose the offhand mention of "alternative technology" was the big announcement that DISH was developing new software in 2006. Note the 2007 annual report came out AFTER the appeals court verdict.

I gather reading SEC filings would not be as helpful as DISH would like the court to believe.


----------



## nobody99

scooper said:


> Do we need to remind you AGAIN that the hardware claims were remanded and therefore do not currently carry any weight until ruled on again ?


Do we need to remind you AGAIN that the injunction was affirmed as written? The injunction is not against the software, but against the entire DVR?


----------



## scooper

nobody99 said:


> Do we need to remind you AGAIN that the injunction was affirmed as written? The injunction is not against the software, but against the entire DVR?


And what is the entire DVR without software ? NOTHING
- a collection of circuit boards and integrated circuits.


----------



## Greg Bimson

scooper said:


> Do we need to remind you AGAIN that the hardware claims were remanded and therefore do not currently carry any weight until ruled on again ?


This time the argument is not circular...

DISH/SATS was found guilty of infringing claims 31 and 61 of the Time Warp patent, the two claims I cited. Together, during the trial, the two claims were collectively defined as "the Software Claims". But they aren't only software; one is a process claim and the other is an apparatus claim.


James Long said:


> I suppose the offhand mention of "alternative technology" was the big announcement that DISH was developing new software in 2006. Note the 2007 annual report came out AFTER the appeals court verdict.
> 
> I gather reading SEC filings would not be as helpful as DISH would like the court to believe.


What gave you that idea?


----------



## nobody99

scooper said:


> And what is the entire DVR without software ? NOTHING
> - a collection of circuit boards and integrated circuits.


But that's what the injunction was written against. DISH had two chances to address that issue. They didn't. Oops.


----------



## jacmyoung

James Long said:


> I'll leave that shell game for the court to ridicule.Starbrite stopped selling those products by name.
> They then started selling new products by the same name.
> They had proof that they were entirely different products that did not infringe.
> 
> DISH never stopped selling their products by name (other than those discontinued in the normal course of business) and continued to place and replace those products.
> 
> Starbrite was not told to remove the cleaning ability of their product.
> DISH was told to remove the DVR functionality of their product.


Again my point has nothing to do with the background information for the two cases, only and only to demonstrate that the court can and will, if necessary, come up with its own interpretation, of what its order means, and sometimes even in a way that defies logic, at least on the surface, regarding the letter of the order.

Why? To conform to the uniform standards governing the contempt decision in a patent infringement case, that is one of them says: Mere violation of the order is not enough, infringement must also be found.

So when the court said in the StarBrite case, no, even though I said to stop the sell and use of the six products specifically by their names, and then the infringer did just the opposite, continued to sell and use that six products by those names, it was of course a violation of the letter of the order.

I hope you do not disagree with me on that, if you do stop reading further, I give up.

Now after the patentee asked the court to find the infringer in violation of the letter of the order, the court said no, you could not *possibly* think that my above order meant to stop the sell and use of those six products by their names, but it really meant to stop the sell and use of the "internal formulations", despite the fact in that order, no where could the patentee find the term "internal formulation" at all.

So how could that happen? Again nothing to do with the background information, just the interpretation of *the letter of the order*.

Tell me then why do you not think it may be possible for Judge Folsom to do the same, for example:

When I ordered DISH to disable the DVR functions, TiVo you cannot possibly think I meant to disable the DVR functions, rather to disable the internal software. After all, it was the software that was infringing.

I hope you can see the parrallel in my point, if not, I give up again.


----------



## nobody99

jacmyoung said:


> When I ordered DISH to *disable the DVR functions*, TiVo you cannot possibly think I meant to *disable the DVR functions*


Really? Please, try to keep up. Maybe read the injunction, it might help you to understand.



injuction said:


> *disable the DVR functionality* (i.e., disable all storage to and playback from a hard
> disk drive of television data)


Honestly, this is truly laughable. You actually quoted the injunction almost word-for-word! Hilarious!

I know that this is completely impossible for you to make a post of less than 100 words, so I don't even know why I am asking. Answer EITHER "yes" or "no": Is storage to and playback from a hard disk drive still active?


----------



## nobody99

jacmyoung said:


> I hope you can see the parrallel in my point, if not, I give up again.


Please be true. Please be true. Please be true. Please be true.


----------



## jacmyoung

dgordo said:


> correct
> 
> No, these are separate motions, tivo could appeal a denial of contempt immediately.


I appreciate your answers. I am not trying to question you, only to learn more.

Your second answer seems to not agree with the following:

"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."

To read the above quote, let's first agree that in front of us today is TiVo seeking a summary (contempt) judgment.

Then let's agree this 9/4 contempt proceeding will not be final until both motions are ruled on, the contempt motion and the damages motion.

My original question was based on the assumption that if the judge rules on the first motion, and denies TiVo's summary (contempt) judgment motion, but he defers the ruling on the second motion, the damages, for another month.

If you read the above, it appears TiVo may not be able to appeal immediately, rather must wait for the second ruling to be finalized.

Is my interpretation correct or have I missed something?


----------



## Curtis52

jacmyoung said:


> I appreciate your answers. I am not trying to question you, only to learn more.
> 
> Your second answer seems to not agree with the following:
> 
> "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."


There has been no decision to deny a summary judgment. In fact, Judge Folsom's 6-5 order was just the opposite. The requests for summary judgments were granted in his 6-5 order.


----------



## scooper

nobody99 said:


> Suppose that Judge Folsom had ruled that the receivers must be destroyed. Suppose he even lays it out - they must be delivered to DVR Shredders Inc., 1001 Industrial Boulevard, Oakland, CA by June 1, 2006.
> 
> Suppose they just ignored the order. They later installed new software that they claim no longer infringe.
> 
> Contempt?


THat's a "What if" - didn't happen - but yes it would have been contempt. However - I believe that one would have been strenously fought by Echostar to just modify the DVR functions at the appellate court.

HOWEVER - as YOU keep pointing out, they were ordered to Disable the DVR function(s) - on the face - maybe a contempt . However - supposed they have been made more than colorably different - so maybe it's not contempt.


----------



## jacmyoung

James Long said:


> ...
> 
> I gather reading SEC filings would not be as helpful as DISH would like the court to believe.


SEC filing was not the only place to find the new design around info, DISH mentioned it in their press releases at the end of last year if I recall, James you should know better because you were on top those things all this time.

Then the news came out that DISH filed a patent application.

Then the news came out TiVo's Rogers gethered his engineers and lawyers in one room, and after looking at DISH's patent application, they concluded it was not possible. Then Rogers made comments in the public in more than one occasion of their finding of the DISH new patent.

Then DISH made at least another public announcement that they have replaced all the DVRs with the new software.

Then came 4/18/08 when the injunction went in effect.

All the above info are in the DISH filings, on record with Judge Folsom.

But regardless, there is no requirement that the infringer must inform the court of any modificaiton taken place, unless if the patentee brings up a contempt charge. Even Judge Folsom on 9/4 said it, even though he wasn't happy, he wasn't sure if DISH had to "alert" him of the change, and he later said he would do some "looking" [into all the issues], and give them "all my attention".


----------



## nobody99

jacmyoung said:


> But regardless, there is no requirement that the infringer must inform the court of any modificaiton taken place


Absolutely true. However, there _is_ a requirement that the infringer disable the DVR functionality :lol:


----------



## jacmyoung

Curtis52 said:


> There has been no decision to deny a summary judgment. In fact, Judge Folsom's 6-5 order was just the opposite. The requests for summary judgments were granted in his 6-5 order.


Curtis, I don't know why all the sudden you have so much trouble reading me.

I made an assumption that the judge denies TiVo's summary contempt judgment motion, but delays the ruling on the damages motion. It was my assumption, get it?

I then asked dgordo under such scenario, what were his answers to my two questions.

Maybe we can wait for dgordo to give us the answer?


----------



## Curtis52

jacmyoung said:


> Curtis, I don't know why all the sudden you have so much trouble reading me.
> 
> I made an assumption that the judge denies TiVo's summary contempt judgment motion, but delays the ruling on the damages motion. It was my assumption, get it?
> 
> I then asked dgordo under such scenario, what were his answers to my two questions.
> 
> Maybe we can wait for dgordo to give us the answer?


You don't understand. The judge has already agreed to hear the summary motions. It happened on 6-5. The judge could have denied the motions for summary judgment. If he denied the motions for summary judgment then it would have been a much longer process. Without that, the case would have continued on its (much longer) normal course. He didn't do that. He agreed to provide summary judgments. Hopefully we will get the results soon.


----------



## jacmyoung

Curtis52 said:


> You don't understand. The judge has already granted the summary motions. It happened on 6-5. The judge could have denied the motions for summary judgment. He didn't do that.


You did not understand what the "granting summary judgment" in that quote "A decision granting summary judgment can be appealed without delay" means. It means the judge rules in favor of the mover.

Anyways, I was asking dgordo two questions, he promptly responded kindly, and I had a followup question for him.

Please let me suggest again wait for dgordo to answer my followup question.

I didn't ask you the question. dgordo understood perfectly the quesitons I asked of him, so let's wait.


----------



## kstuart

James Long said:


> I've been creating new threads when something happens so those who don't want to wade through the rhetoric can just look for new threads


Unfortunately, having said that, it looks like you did not follow through.

I scanned through the last few pages and there is something about 9/29 and the SC, but I can't really tell what from the constant bickering.

It would be helpful if there was a separate *locked* thread with just posts from mods of what has happened, i.e. PDFs, transcripts, etc.

At this point I can write Greg and Jac's posts without having to have read them in advance.


----------



## James Long

jacmyoung said:


> So when the court said in the StarBrite case, no, even though I said to stop the sell and use of the six products specifically by their names, and then the infringer did just the opposite, continued to sell and use that six products by those names, it was of course a violation of the letter of the order.


StarBrite ceased selling the named products. Their error was selling products with a similar function with the same name. The reuse of the name created confusion (much like when Safety 1st used nearly identical model numbers on new products). The same kind of confusion that DISH has involved itself in by not being open about their software upgrade attempts and notifying the court of their actions.

Plus with StarBrite there wasn't a "disable your existing products in customer's hands". DISH avoided a recall of their products by telling the court that the DVR functionality could be disabled. Then they failed to follow through when ORDERED to disable their infinging products. Not doing what a court orders you to do is ... contempt.


> I hope you do not disagree with me on that, if you do stop reading further, I give up.


You? Give up? You would NEVER be able to keep that promise. 

StarBrite eventually proved that their new products were not their old products and were non-infringing. Perhaps DISH will eventually prove that their old products have been magically transformed into non-infringing products ... that could happen some time in the future when the court is actually looking at the question of infringement.

For now the court is focusing on simple contempt on the face of the injunction. A specific act that the plaintiff was ordered to perform that they apparently did not perform. Did DISH treated the court's order with contempt? That's the question for the court.


> When I ordered DISH to disable the DVR functions, TiVo you cannot possibly think I meant to disable the DVR functions, rather to disable the internal software. After all, it was the software that was infringing.


One more time ... it wasn't JUST the software that was infringing, it was the product. Regardless of the "hardware claims", the injunction was placed and upheld against the product ... which as defined is eight models of receivers.


> I hope you can see the parrallel in my point, if not, I give up again.


Feel free to give up now.


----------



## James Long

jacmyoung said:


> Then came 4/18/08 when the injunction went in effect.
> 
> All the above info are in the DISH filings, on record with Judge Folsom.


When did DISH make the changes?
When did DISH make the changes public?
When did DISH tell the court?

Judge Folsom is curious as to why his court was the last to be notified of changes that began nearly two years ago. The primary job of the civil court is to settle differences between parties. The existence of a "work-around" is a primary piece of evidence that was withheld by DISH from the court.

While there were plenty of hints that DISH was confident that they would be able to use alternative methods DISH displayed disrespect (if not contempt) toward the court by not openly sharing their results directly with the court when making them public.


----------



## nobody99

Sorry, I have to come back to this again.



jacmyoung said:


> When I ordered DISH to "disable the DVR functions", TiVo you cannot possibly think I meant to "disable the DVR functions"


Really?? :lol:


----------



## James Long

kstuart said:


> Unfortunately, having said that, it looks like you did not follow through.
> 
> I scanned through the last few pages and there is something about 9/29 and the SC, but I can't really tell what from the constant bickering.
> 
> It would be helpful if there was a separate *locked* thread with just posts from mods of what has happened, i.e. PDFs, transcripts, etc.


If you (or anyone else) would like to question how the forum is moderated please send a PM, per the forum rules.

As far as the SCOTUS case goes, I believe (as a moderator) that there is too little meat to the announcement to deserve it's own special thread. The most we can say is "about a month from now we may know whether or not DISH will be able to present the original case before the Supreme Court or if they will not the opportunity to make that final appeal". A couple of restatements and the thread moved back to the current "waiting for Texas" theme.

When SCOTUS actually makes that determination it will be news ... as for now, back to the show ...


----------



## peak_reception

Curtis52 said:


> *Brrring* *Brrriiiing*
> 
> "Judge Folsom's office"
> 
> Hello, this is one of the attorneys for Echostar. I don't know whether you guys remember... hello... oh I thought we got disconnected. Anywho, I know it's been awhile but I thought the judge might want to be updated.
> 
> He's there? great,
> 
> Hello Judge Folsom? I just wanted to let you know that we've got some new software.
> 
> Well, yes it's stayed.
> 
> You don't have the ball? Because it's stayed? Nothing to do with you? Nothing on your docket?
> 
> Ok then.
> 
> Sorry to bother you.
> 
> See you soon.


 Entertaining but silly.

How about bringing up the possibiilities to the judge *before* the injunction was written? Even if you didn't know for sure it will work, just to let the judge know that you are working on it (with transparency and good faith) and may well have a solution in the near future, or at least your best effort towards one.

Failing that, post-injunction (post-stay) you could still file a brief (or whatever the legal process is) with the court that your design-around has born fruit and is soon to be implemented through downloaded software modifications. Then another once the process is completed, accompanied by a description of the success achieved.

You suggest that Judge Folsom wouldn't care once it left his court to the CAFC. Highly doubtful, as his questioning on September 4 suggests. Pre-Injunction he would certainly care. Post Injunction he would also care because there's a real good chance it comes back to him after visited by the CAFC. And wonder of wonders, it did!

I'm sure there are ways to get such important notifications entered into the court's record. Even if Echo feared that Judge Folsom wouldn't be receptive to their modification plan, it would've been smart of them to get it into the record for the consideration of "boss courts" to come.

The *Brrring* *Brrriiiing* method you envision in your post would hardly be the best method for introducing such developments


----------



## James Long

jacmyoung said:


> I didn't ask you the question. dgordo understood perfectly the quesitons I asked of him, so let's wait.


Welcome to the Internet ... a place where you can't control who answers your questions.

If you want dgordo's answers wait for them ... if you don't want anyone else's answers perhaps a PM conversation would be better?


----------



## Curtis52

peak_reception said:


> Entertaining but silly.
> 
> How about bringing up the possibiilities to the judge *before* the injunction was written?


TiVo tried to claim that Dish brought up the subject of a software change prior to the injunction but that Judge Folsom shot it down. I guess that theory is shot to hell.


----------



## nobody99

Curtis52 said:


> TiVo tried to claim that Dish brought up the subject of a software change prior to the injunction but that Judge Folsom shot it down. I guess that theory is shot to hell.


No. Doesn't matter whether DISH brought it up or not. They should have, but didn't. Too late now.


----------



## James Long

The theory of a software change avoiding infringement is different than being able to present evidence of a working software version on existing equipment that avoids infringement.

DISH was pushing to have the injunction weakened to allow DVR functionality to continue if the software changed. The judge denied that request and DISH did not appeal that point.

Now DISH has to deal with the injunction they have, not the injunction they wanted.


----------



## kstuart

James Long said:


> If you (or anyone else) would like to question how the forum is moderated please send a PM, per the forum rules.


I'm just annoyed because the pointless bickering obscures the actual information.

The thread only has posts discussing the SCOTUS news, not the news itself.

_When you combine both the Distants litigation and the All-American Direct litigation, no one was right about everything. No principles or experience can predict the outcome of the path of the litigation._

If people want to argue about how many Ergens (*with two Es*) can dance on the end of a pin, feel free - but at least have a separate area or thread for the info.

PS *The court info is a big plus point for this site, why not break it out into its own thread or area to emphasize it ?*


----------



## peak_reception

Curtis52 said:


> TiVo tried to claim that Dish brought up the subject of a software change prior to the injunction but that Judge Folsom shot it down. I guess that theory is shot to hell.


 There remains uncertainty as to what TiVo was referring to. Hopefully we will find out eventually. If TiVo's claim was right then there is no longer any mystery as to why Echo didn't inform the court. Fortunately, Judge Folsom will not be confused. He will know one way or the other. 

If Echo *did* ask for such permission to be written into the Injunction, and was denied, then that would certainly explain why they went ahead with it in secrecy. Contemptuous of Judge Folsom perhaps but still a better chance of winning on appeal if they'd proceeded in sunlight instead of shadows.


----------



## peak_reception

James Long said:


> DISH was pushing to have the injunction weakened to allow DVR functionality to continue if the software changed. The judge denied that request and DISH did not appeal that point.


 I think that's right. I think that's what TiVo was referring to. I don't believe that Dish ever just came out and told the Judge what they had in mind. Too clever by half, and now it's coming back to bite them.


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## nobody99

peak_reception said:


> If Echo *did* ask for such permission to be written into the Injunction, and was denied, then that would certainly explain why they went ahead with it in secrecy. Contemptuous of Judge Folsom perhaps but still a better chance of winning on appeal if they'd proceeded in sunlight instead of shadows.


If this were the case, they most certainly would have brought it up on appeal. They didn't. Too late now.


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## peak_reception

nobody99 said:


> No. Doesn't matter whether DISH brought it up or not. They should have, but didn't. Too late now.


 Judge Folsom seems to think it matters. We'll know more when the full transcript comes out.


----------



## Curtis52

peak_reception said:


> I think that's right. I think that's what TiVo was referring to. I don't believe that Dish ever just came out and told the Judge what they had in mind. Too clever by half, and now it's coming back to bite them.


Can you point to anything in Judge Folsom's decision that supports that? He spent 20 pages or so presenting discussions from both sides. I don't remember anything like that.


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## Greg Bimson

As I recall, DISH/SATS wanted to be able to sell any DVR, but only to have the injunction apply to downloading software, as a DVR is not functional without the software (and supposedly doesn't have software when first installed).

In other words, DISH/SATS only wanted to be enjoined from making receivers active by downloading software. How could a receiver be infringing if the functionality doesn't work? Why would DISH/SATS want to sell a "brick" that does what a regular, non-DVR receiver does?

One can simply figure out why DISH/SATS wanted this version of the injunction...


----------



## dgordo

jacmyoung said:


> I appreciate your answers. I am not trying to question you, only to learn more.
> 
> Your second answer seems to not agree with the following:
> 
> "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."
> 
> To read the above quote, let's first agree that in front of us today is TiVo seeking a summary (contempt) judgment.
> 
> Then let's agree this 9/4 contempt proceeding will not be final until both motions are ruled on, the contempt motion and the damages motion.
> 
> My original question was based on the assumption that if the judge rules on the first motion, and denies TiVo's summary (contempt) judgment motion, but he defers the ruling on the second motion, the damages, for another month.
> 
> If you read the above, it appears TiVo may not be able to appeal immediately, rather must wait for the second ruling to be finalized.
> 
> Is my interpretation correct or have I missed something?


Because if the contempt motion were denied that would be the end of that part. There is no normal course for that part to continue with, that's the end. The damages motion us a separate motion and not part of the normal course of the contempt motion.

That quote is more relevant to a full trial. Lets say one party moves for summary judgment before the trial begins on the on a claim and that motion is denied. The normal course would be for the case to go to trial.


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## Curtis52

Greg Bimson said:


> As I recall, DISH/SATS wanted to be able to sell any DVR, but only to have the injunction apply to downloading software, as a DVR is not functional without the software (and supposedly doesn't have software when first installed).
> 
> In other words, DISH/SATS only wanted to be enjoined from making receivers active by downloading software. How could a receiver be infringing if the functionality doesn't work? Why would DISH/SATS want to sell a "brick" that does what a regular, non-DVR receiver does?
> 
> One can simply figure out why DISH/SATS wanted this version of the injunction...


Can anyone find anything supporting TiVo's previous claim that Dish asked for software modifications to be allowed in the injunction? Anyone?


----------



## peak_reception

Curtis52 said:


> Can you point to anything in Judge Folsom's decision that supports that? He spent 20 pages or so presenting discussions from both sides. I don't remember anything like that.


 Shouldn't you direct that question to James? To me it just makes good logical sense. Dish wanted to avert disabling DVRs no matter what. If they could change the software and avert DVR shutdown then by all means try to get that provision included! *Apparently* this is what the Judge denied, maybe because the infringement was found to be a function or "process" of hardware and software working together. So it was denied for good reason. Of course that was before anyone knew that the CAFC would reverse and remand the hardware claims. That's my best shot at it. James?


----------



## rocatman

James Long said:


> The theory of a software change avoiding infringement is different than being able to present evidence of a working software version on existing equipment that avoids infringement.
> 
> DISH was pushing to have the injunction weakened to allow DVR functionality to continue if the software changed. The judge denied that request and DISH did not appeal that point.
> 
> Now DISH has to deal with the injunction they have, not the injunction they wanted.


When the injunction was written, the hardware was also part of the infringement which may have been the reason the judge denied the Dish request and why Dish did not appeal that point. I believe Judge Folsom has to consider this factor in making his ruling on the contempt related to the way he interprets the wording of the injunction i.e., the Appeals Court ruling to remand the hardware infringement claims should affect the interpretation of the injunction. Otherwise Dish can use this as an argument in an appeal if found in contempt.


----------



## peak_reception

Greg Bimson said:


> As I recall, DISH/SATS wanted to be able to sell any DVR, but only to have the injunction apply to downloading software, as a DVR is not functional without the software (and supposedly doesn't have software when first installed).


 Isn't that the exchange that nobody99 came up with on this topic a few weeks ago?


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## nobody99

rocatman said:


> When the injunction was written, the hardware was also part of the infringement which may have been the reason the judge denied the Dish request and why Dish did not appeal that point. I believe Judge Folsom has to consider this factor in making his ruling on the contempt related to the way he interprets the wording of the injunction i.e., the Appeals Court ruling to remand the hardware infringement claims should affect the interpretation of the injunction. Otherwise Dish can use this as an argument in an appeal if found in contempt.


One would think that that's an excellent point, except that Judge Folsom _can't_ consider this. The appeals court upheld the injunction in toto and unchanged. He has to honor it the injunction as written. If the appeals court had remanded the injunction, then it's a new ballgame. But they didn't.


----------



## nobody99

peak_reception said:


> Isn't that the exchange that nobody99 came up with on this topic a few weeks ago?


I did - and it only applied to new DVRs that haven't been sold yet. So let's say that DISH has one of the eight named DVRs sitting in a warehouse. They aren't even allowed to put new software on that already-manufactured machine.

They didn't even _attempt_ to ask for the right to put new software on _existing_ boxes. I'd search for my own post, but I'm too lazy :lol:


----------



## James Long

Curtis52 said:


> Can anyone find anything supporting TiVo's previous claim that Dish asked for software modifications to be allowed in the injunction? Anyone?


Most of the previous documentation is sealed.  
I don't see DISH saying "liar liar pants on fire" about the claim.


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## nobody99

James Long said:


> Most of the previous documentation is sealed.
> I don't see DISH saying "liar liar pants on fire" about the claim.


Here's my post on it from a few weeks ago as peak_reception impressively recalls 

Post

Edit: can someone let Curtis52 know about this link (since he asked in the first place)? He's got his head buried in the sand when it comes to my posts :lol:


----------



## peak_reception

nobody99 said:


> One would think that that's an excellent point, except that Judge Folsom _can't_ consider this. The appeals court upheld the injunction in toto and unchanged. He has to honor it the injunction as written. *If the appeals court had remanded the injunction, then it's a new ballgame. But they didn't.*


 Uh oh. Guess where this is all going back to once Judge Folsom finds contempt and Dish appeals? The CAFC can "fix" this once it's back in their hands.

Now, as Curtis has laid down the gauntlet, someone needs to find the smoking gun that Dish actually asked for permission, before or after the Injunction, to avert DVR disability through software solutions. Fortunately the Judge will know. Hopefully his decision will lay it all out for everyone.


----------



## Greg Bimson

The jist of it was TiVo interpreted that DISH/SATS all along was trying to get software loaded onto a receiver, and have that outside of the scope of the injunction.

After all, DISH/SATS is selling the exact same 625 that they were selling three years ago. The difference is only that upon activation there is now some supposedly non-infringing software downloaded onto it.


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## James Long

nobody99 said:


> One would think that that's an excellent point, except that Judge Folsom _can't_ consider this. The appeals court upheld the injunction in toto and unchanged. He has to honor it the injunction as written. If the appeals court had remanded the injunction, then it's a new ballgame. But they didn't.


Judge Folsom is uniquely qualified to judge the intent of his own writing. DISH is hoping that he chooses option B (DISH has complied with the spirit of the injunction). Tivo still hopes for option A (DISH is in contempt).

DISH may appeal the injunction based on "new information that was not available at the time of trial" (which MUST be presented to the trial court first ... and it has in the form of a response to Tivo's agenda for the May 30th status hearing and in response to Tivo's Motion for Contempt). But they have to wait for an adverse ruling.


----------



## scooper

nobody99 said:


> I did - and it only applied to new DVRs that haven't been sold yet. So let's say that DISH has one of the eight named DVRs sitting in a warehouse. They aren't even allowed to put new software on that already-manufactured machine.
> 
> They didn't even _attempt_ to ask for the right to put new software on _existing_ boxes. I'd search for my own post, but I'm too lazy :lol:


That's because it was NOT PROHIBITED. Anything NOT EXPLICTLY PROHIBITED is ALLOWED .

Tivo screwed up by not insisting on this - oh wait, they couldn't since modifications to get around patents is ENCOURAGED by our system.


----------



## Greg Bimson

peak_reception said:


> Now, as Curtis has laid down the gauntlet, someone needs to find the smoking gun that Dish actually asked for permission, before or after the Injunction, to avert DVR disability through software solutions.


I'll throw this out here...

DISH/SATS did ask for a motion for clarification about some receivers that were subject to the injunction.

So, imagine that. DISH/SATS did want to have the court address an interpretation of the injunction.

But not this current interpretation, where a receiver adjudged infringing with some new software loaded is no longer subject to the injunction.

DISH/SATS never did ask permission or inform the court of a supposed download that could design-around the patent which was infringed. That is why Judge Folsom went off on his tirade, at least according to TiVo Mike.


----------



## James Long

nobody99 said:


> Here's my post on it from a few weeks ago as peak_reception impressively recalls
> 
> Post


"SEALED PATENT MOTION EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and Permanent Injunction and (2) Cross-Motion to Stay Any Injunction Pending Appeal by "EchoStar defendants"."

Curiosity ... it is sealed, where did you get the text quoted in that linked post?
Was it it an attachment to a more recent filing?


----------



## Greg Bimson

scooper said:


> That's because it was NOT PROHIBITED. Anything NOT EXPLICTLY PROHIBITED is ALLOWED .


Yes, but using that logic....

That's because the court ordered ONE ACTION. A simple NON-COMPLIANCE WITH THAT ONE ACTION is defined as CONTEMPT.


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## nobody99

perm injunction said:


> as Plaintiff is a relatively new company with only one primary product, *loss of market share and of customer base as a result of infringement cause severe injury*. Thus, the Court concludes that the *full impact of Defendants' infringement cannot be remedied by monetary damages.*


I think it is important to go back to Judge Folsom's permanent injunction and the reasoning for its issue. It would be hard to read the above quote to somehow allow a new software download without some intervention by the court.


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## nobody99

James Long said:


> "SEALED PATENT MOTION EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and Permanent Injunction and (2) Cross-Motion to Stay Any Injunction Pending Appeal by "EchoStar defendants"."
> 
> Curiosity ... it is sealed, where did you get the text quoted in that linked post?
> Was it it an attachment to a more recent filing?


It was from Mainer's page. I just can't remember which file. But unlike certain other people, I swear I am not making it up :lol:


----------



## nobody99

scooper said:


> That's because it was NOT PROHIBITED. Anything NOT EXPLICTLY PROHIBITED is ALLOWED .
> 
> Tivo screwed up by not insisting on this - oh wait, they couldn't since modifications to get around patents is ENCOURAGED by our system.


Tell me, please, what is EXPLICITYLY PROHITED in this sentence?

"within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data)"

If "television data" is being stored or played back from a hard disk, is it prohibited?

And, for the fourteen billionth time, I agree with you that getting around patents is encouraged by our system. But not when a device is already manufactured, accused, and convicted. New products - we are in COMPLETE agreement.


----------



## peak_reception

Greg Bimson said:


> DISH/SATS never did ask permission or inform the court of a supposed download that could design-around the patent which was infringed. That is why Judge Folsom went off on his tirade, at least according to TiVo Mike.


 Never asked permission on this critical question _*that we know of*_ but you're right, Judge Folsom's reaction (I don't think mike described it as a "tirade") suggests that he (the Judge) was never approached regarding such a plan -- i.e. the "design-around." Fascinating stuff. I'm burned out for tonight though. over and out.


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## James Long

nobody99 said:


> It was from Mainer's page. I just can't remember which file. But unlike certain other people, I swear I am not making it up :lol:


Docket #832 - Exhibit B ... EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and (2) Cross-Motion to Stay any Injunction Pending Appeal

DISH's request is at the end the first paragraph of the last page of the attached file.
Accordingly, the appropriate scope of an injunction, if one were to issue, would enjoin only the provision of infringing DVR software to those boxes upon activation. In this fashion, proper and non-infringing uses, e.g., to receive and display live satellite television, or to perform DVR functions in a non-infringing manner, may be made of the boxes.​


----------



## Greg Bimson

James Long said:


> DISH may appeal the injunction based on "new information that was not available at the time of trial" (which MUST be presented to the trial court first ... and it has in the form of a response to Tivo's agenda for the May 30th status hearing and in response to Tivo's Motion for Contempt). But they have to wait for an adverse ruling.


But isn't that almost exactly what DISH claimed was a "changed circumstance", when they announced a settlement with the networks and their affiliate boards on the distants case, but only AFTER issuance of an injunction was mandated upon remand of that case?

That, to me, is the larger problem. The court would need to rule on the design-around so that the work-around stands clear of the disable order of the injunction. (YES, MY OPINION). And still there has been no request for a ruling.


----------



## CuriousMark

kstuart said:


> *The court info is a big plus point for this site, why not break it out into its own thread or area to emphasize it ?*


If all you want to see is the court information, you can visit Mainer_ayah's site where he posts it as soon as he pulls it off of the court websites. He pays for those downloads out of his own pocket, but you can donate to defray those costs at his site if you so desire. It is at http://www.southernme.com/DAVY_v_GOLIATH/


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## nobody99

James Long said:


> Docket #832 - Exhibit B ... EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and (2) Cross-Motion to Stay any Injunction Pending Appeal
> 
> DISH's request is at the end the first paragraph of the last page of the attached file.
> Accordingly, the appropriate scope of an injunction, if one were to issue, would enjoin only the provision of infringing DVR software to those boxes upon activation. In this fashion, proper and non-infringing uses, e.g., to receive and display live satellite television, or to perform DVR functions in a non-infringing manner, may be made of the boxes.​


I think it is important to this dicussion that DISH only asked this about _new_ receivers. DISH prefaced your quote with this:



> TiVo also demands that EchoStar be enjoined from selling or distributing any of the receiver models that were found to infringe, and that EchoStar recall from distirbutors and retailers those receiver models that have "not yet entered the stream of commerce."


Since the 9/4 hearing didn't deal at all with new receivers, DISH never requested the right to download new software as far as this hearing goes.


----------



## scooper

nobody99 said:


> Tell me, please, what is EXPLICITYLY PROHITED in this sentence?
> 
> "within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data)"
> 
> If "television data" is being stored or played back from a hard disk, is it prohibited?
> 
> And, for the fourteen billionth time, I agree with you that getting around patents is encouraged by our system. But not when a device is already manufactured, accused, and convicted. New products - we are in COMPLETE agreement.


YOU are the one being dense that insists that already placed products cannot (with or without court approval) be modified in the field.

THis case really does need to goto SCOTUS to establish the precedent, according to you.


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## James Long

nobody99 said:


> I think it is important to this dicussion that DISH only asked this about _new_ receivers.


Considering DISH's current claim that downloading new software makes the receiver a new receiver, _IF_ DISH would have got that injunction they would just apply it to ALL receivers anyways.

DISH is claiming that they disabled DVR functionality and then re-enabled DVR functionality (claiming to have obeyed the LETTER of the injunction). That would be like Dr King's group saying they didn't violate their injunction by marching in Birmingham. They simply stood on one street corner then stood on another street corner and regardless of the chanting and singing walking between the street corners was not marching.


----------



## nobody99

James Long said:


> Considering DISH's current claim that downloading new software makes the receiver a new receiver, _IF_ DISH would have got that injunction they would just apply it to ALL receivers anyways.
> 
> DISH is claiming that they disabled DVR functionality and then re-enabled DVR functionality (claiming to have obeyed the LETTER of the injunction). That would be like Dr King's group saying they didn't violate their injunction by marching in Birmingham. They simply stood on one street corner then stood on another street corner and regardless of the chanting and singing walking between the street corners was not marching.


Excellent point. I hadn't consider the jedi mind trick interpretation, as you so wisely have Jedi Master


----------



## nobody99

scooper said:


> YOU are the one being dense


Scooper, please follow James' request for civil discussion. There's no need to insult me. :nono2: As for the rest of your comment, I won't even bother replying.


----------



## nobody99

Tivo brings up Dr. King's case, but here's some more commentary in another case. I've bolded a few things. This is a pretty damning case for DISH.


In re Roger NOVAK, Appellant



> Generally, an individual must comply with a court's order, regardless of its validity, until it is reversed. Novak *disregarded the district court's order based on his own evaluation of its correctness; while we agree with Novak, for reasons different from his, that the underlying order in this case was invalid, we will not allow him to ignore the order with impunity.*
> 
> It is well established that an order duly issued by a court having subject-matter jurisdiction over a case or controversy before it, and personal jurisdiction over the parties to that case or controversy, *must be obeyed, regardless of the ultimate validity of the order.*
> 
> As Chief Judge John Brown explained: "People simply cannot have the luxury of knowing that they have a right to contest the correctness of the judge's order in deciding whether to willfully disobey it.... *Court orders have to be obeyed until they are reversed or set aside in an orderly fashion.*" Dickinson, 465 F.2d at 509
> 
> This rule, known as the collateral bar rule, is vividly illustrated by the case of Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). In Walker, an Alabama trial court, on motion by city officials, enjoined a group of leading civil rights activists, including Dr. Martin Luther King, Jr., from marching through Birmingham during the forthcoming Easter weekend to protest against racial discrimination; the injunction was simply a judicial paraphrase of an existing municipal ordinance. Ignoring the order, the demonstrators marched as planned, without having taken any judicial steps to dissolve or overturn the injunction. As a result of their knowing disregard of the injunction, the court convicted the demonstrators of criminal contempt and sentenced them to five days in jail, plus a $50 fine.*Although the Supreme Court recognized that the municipal ordinance on which the injunction was based raised substantial "constitutional issues," id. at 316, 87 S.Ct. at 1830, the Court nevertheless upheld the contempt convictions.*
> 
> Thus, "even in a case where the equities cut so dramatically in favor of the accused contemnors, the *Supreme Court came down on the side of the orderly rule of law.*


As Greg has pointed out all along, there is procedure to follow. Look at the similarites. DISH disregarded the district cout's order based on thier own evaluation of its correctness. Even if, at some point in the far-off future, are found to have been correct, a contempt finding of disobeying the order will stand. Since civil contempt fines are payable to the injured party, TiVo will certain benefit financially from DISH's refusal to obey the contempt order.

DISH's refusal to notify the court of the workaround software, while certainly not _required_ might have allowed Judge Folsom to open a new hearing, which ultimately could have addressed some of the challenges that exist today. They didn't do it, and it's going to be a major cause of pain.

I believe, and yes, it is IMHO, that _even if_ Judge Folsom allows the modified software to be allowed on the existing receivers, they will still have been in contempt through the date of that decision.

On that basis alone, TiVo could come out with another couple hundred million.


----------



## nobody99

One more comment, and this may be the entire reason that DISH filed the case in DE. Look at this particular quote from above:



> It is well established that an order duly issued by a court having subject-matter jurisdiction over a case or controversy before it, and personal jurisdiction over the parties to that case or controversy, must be obeyed, regardless of the ultimate validity of the order.


If the case in DE establish that the software no longer infringes on TiVo's patent, then DISH could try to make the argument that Judge Folsom's court no longer has jurisdiction over those receivers. An awfully difficult case to make, and fraugh with risks, but I can see the logic.


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## nobody99

I should have quoted the summary from the case, it lays it all out quite simply. The appeals court overturned the injunction, while _simultaneously_ affirming contempt for ignoring it.



> To summarize, we conclude that *the district court was unauthorized...to order Novak...to appear before it to facilitate settlement discussions. Therefore, that order was invalid. Nevertheless, Novak was required to obey the order until it was vacated; instead, he willfully disregarded it.* For that, the district court properly convicted him of criminal contempt. Accordingly, the district court's decision is AFFIRMED


----------



## nobody99

Oh what the heck. I'm channeling jacmyoung with a few dozen consecutive posts. Footnote 3 is also interesting.



> Additionally, Novak revealed that he did not have full authority to settle the case; his settlement authority only extended to $100,000. (Novak's superiors at CNA had to approve any settlement figure over $100,000; these superiors approved the $225,000 settlement offer Novak authorized Ratterree to make, see supra p. 1399.) Thus, his attendance at the settlement conference would have been unhelpful. While this revelation demonstrates why courts should direct such orders to the parties, requiring them to produce the proper individual, see infra pp. 1406-1407, it provides no defense in this case. *If the order contained, or was based on, erroneous information, Novak could have informed the court of this in a respectful manner, directly or through Ratterree. Instead, he decided to ignore the court's order. It is this decision that exposed him to criminal liability, not any court error*. The law is settled that an order issued by a court with jurisdiction must be obeyed, even if the order itself is invalid. See infra p. 1400


----------



## bobcamp1

peak_reception said:


> Never asked permission on this critical question _*that we know of*_ but you're right, Judge Folsom's reaction (I don't think mike described it as a "tirade") suggests that he (the Judge) was never approached regarding such a plan -- i.e. the "design-around." Fascinating stuff. I'm burned out for tonight though. over and out.


As I've said before, there are reasons you don't tell anyone about your work-around plan until all the patents are filed. Not only that, but the original ruling involved hardware as well, which could not be worked-around. Dish probably wasn't serious about the plan until after the hardware ruling was set aside.

Second, Dish has the right to change the software on its products at any time for any reason. The injunction does not explicitly prohibit this, and any such injunction would immediately be stayed and not stand on appeal. If, for example, Dish fixes another bug or adds a new feature completely unrelated to this case, they are well in their right to do so.

Third, Judge Fossom has to be pretty dumb not to expect Dish to investigate and implement a software work-around. Especially after the hardware claims were set aside. Once again, however, Dish is well within their rights to do so. Whether it "counts" as far as the injunction is concerned is a different question.

Judges in these cases usually get frustrated. Because it shows how little power they have, how easily they can be manipulated, and how slow they are to react. And these cases can go on forever.

Finally, in these other cases (King, Novak) the party was not willing to comply with neither the spirit nor the letter of the law. Here, Dish complied (TBD) with the spirit of the law. They can weakly claim to have also followed the letter of it. It's like going 58 in a 55 with a faulty speedometer. You thought you were going 54 mph, but you were speeding. Judges in these cases will accept a plea of a lesser charge. It could be the same for Dish -- award additional damages to Tivo up until the ruling date and no more, and then overturn the injunction.

And don't forget that any ruling from now on can be appealed.


----------



## nobody99

bobcamp1 said:


> AHere, Dish complied (TBD) with the spirit of the law. They can weakly claim to have also followed the letter of it.


That's absolutely untrue. In originally arguing for a stay of the permanent injunction, DISH said that it would mean that 4 million DVR users would be without DVR service. They knew _exactly_ what it meant. TiVo quite correctly points this out in several of their filings.

As far as weakly claimed to have followed the letter of it? I can't see how you can even say they've weakly followed it. DVR functions are still enabled. Period.

With respect to modifying the software, bug fixes, and the like, I'm surprised this still comes up. I don't think anyone has any issue with that. They can do whatever they want as long as the DVR functionality is disabled.


----------



## Greg Bimson

bobcamp1 said:


> As I've said before, there are reasons you don't tell anyone about your work-around plan until all the patents are filed. Not only that, but the original ruling involved hardware as well, which could not be worked-around.


I could be mistaken about this...

Once DISH/SATS was found infringing, they enlisted outside counsel Fish and Richardson to find a way to work around the Time Warp patent. Fish and Richardson detailed a way to design-around the nine claims, INCLUDING the seven claims labeled as the hardware claims where the jury had found DISH/SATS guilty of infringement.

Therefore, the workaround via software could remove infringement of the hardware claims, according to Fish and Richardson.



bobcamp1 said:


> Dish probably wasn't serious about the plan until after the hardware ruling was set aside.


But I am not mistaken about this...

The Fish and Richardson opinion was given about the same time the injunction was issued, back in August or September, 2006. DISH/SATS then implemented those changes, I believe by February, 2007.

The hardware claims were not reversed until January, 2008.

DISH/SATS was quite serious about the plan before the injunction was ever issued.


----------



## Greg Bimson

Again, I point this out...

You all need to stop thinking about this relating to Hardware and Software. The two remaining infringement claims start with "A process" and "An apparatus". There are some software terms in those, but the claim constructions are not totally based upon software.

The Fish and Richardson letter says how DISH/SATS can remove infringement off of one of the software claims by removing indexing. However, that exact term in the patent is "parse", which simply means analyze according to the claim construction. Analysis is done by the receiver on the incoming data stream; analysis of the data is already law of the case based on the claim construction. Even DISH/SATS admitted that step in the claim was infringed. Yet that step was not changed by the new software.


----------



## jacmyoung

dgordo said:


> Because if the contempt motion were denied that would be the end of that part. There is no normal course for that part to continue with, that's the end. The damages motion us a separate motion and not part of the normal course of the contempt motion.
> 
> That quote is more relevant to a full trial. Lets say one party moves for summary judgment before the trial begins on the on a claim and that motion is denied. The normal course would be for the case to go to trial.


Again thank you for the answer, it makes sense to me.

I was under the impression the 9/4 hearing was a singular event, therefore multiple motions addressed on 9/4 might be considered a single process as whole.

Of course there are two separate motions, but I though because the outcome of the second ruling is dependent on the outcome of the first ruling. But since the first ruling is not dependent on the second one, technically once it is done it is final, and may be appealed by either party.


----------



## jacmyoung

James Long said:


> Welcome to the Internet ... a place where you can't control who answers your questions.
> 
> If you want dgordo's answers wait for them ... if you don't want anyone else's answers perhaps a PM conversation would be better?


But Curtis52 did not understand the Q/A between me and dgordo, that was what I tried to tell him. He wasn't trying to answer my question he was questioning my question, to which I asked that we both wait for dgordo.

Now dgordo has answered my question since he understood my question very well, I very much welcome Curtis52 to contribute if he wishes.


----------



## James Long

bobcamp1 said:


> As I've said before, there are reasons you don't tell anyone about your work-around plan until all the patents are filed. Not only that, but the original ruling involved hardware as well, which could not be worked-around.


The patent was filed in 2007 (October, IIRC) the software was noted in an SEC filing in February of 2008 (after the appeals court ruling) and the Texas court was not "notified" until May.

Once the patent was filed DISH was protected ... instead they waited several months to clue in the court when there was no need to keep it "secret".

BTW: DISH claims that their new process does not violate the software or hardware claims that the jury found them guilty of violating and DISH further claims that their new software using that process does not use the (potentially) infringing hardware. The reverse and remand of the hardware claims are irrelevant to the delay.



nobody99 said:


> As far as weakly claimed to have followed the letter of it? I can't see how you can even say they've weakly followed it. DVR functions are still enabled. Period.


DISH's claim is that they disabled the DVR functionality when new software was downloaded. The weakness is that the new software reenabled DVR functionality. Yep, Jedi mind tricks. 



Greg Bimson said:


> The two remaining infringement claims start with "A process" and "An apparatus". There are some software terms in those, but the claim constructions are not totally based upon software.


Isn't the apparatus in the "software" claims the software itself? The process would be the flow chart and the apparatus would be the completed code?


----------



## James Long

jacmyoung said:


> Now dgordo has answered my question since he understood my question very well, I very much welcome Curtis52 to contribute if he wishes.


Curtis52 does not need your permission to contribute. Please do not attempt to control the conversation any further. We have people for that.


----------



## jacmyoung

Greg Bimson said:


> Yes, but using that logic....
> 
> That's because the court ordered ONE ACTION. A simple NON-COMPLIANCE WITH THAT ONE ACTION is defined as CONTEMPT.


Please do not confuse the violation of the order with seeking permisson.

If the order does not require a permission, not seeking a permission cannot be a violation, period, it has nothing to do with if not disabling the DVR functions is a violation or not.

The judge will be smart enough to see the difference, and TiVo's continued trying to mix the two together is a waste of time.

Of course you can argue if not disabling the DVR functions is a violation or not, what is irrelevant is whether DISH sought a permission or not.


----------



## peak_reception

scooper said:


> That's because it was NOT PROHIBITED. Anything NOT EXPLICTLY PROHIBITED is ALLOWED .


 No need to shout.  Judge Folsom seems to think it matters (how Dish went about their design-around). We'll know more when the full transcript comes out. The Judge was also interested in the way Dish filed in DE minutes after the May 30th hearing. If neither one matters why would he even mention it/them on 9-4 in such a short, important meeting of such limited time available?

I think it's because there are right ways to go about doing things in court, and wrong ways (another way of saying good faith / bad faith). And of course procedures to follow. Though given acts may not be expressly prohibited or illegal, they may still show dis*court*esy(1), disrespect, disregard, even *contempt* (i.e. blatant, willful disregard) for the judge and court. Not a good position to put yourself in when judgment day rolls around.

Dish has done their best to delay such judgment but the day of reckoning may soon be upon them. If Contempt is found by Judge Folsom then there's one appeal left unless SCOTUS takes it on after that.

However, knowing how slowly the wheels of justice turn, that may still mean many months into 2009 before it's all over (and that assumes that the CAFC sides with TiVo which is no sure bet).

Of course the new software itself, and other Dish receivers not already enjoined, could start whole new rounds of litigation which would go well beyond 2009, if taken up.



> Tivo screwed up by not insisting on this - oh wait, they couldn't since modifications to get around patents is ENCOURAGED by our system.


 See above. 

(1) Dis*court*esy. Noun. To mildly 'dis' the court.


----------



## jacmyoung

BTW Greg, just want to mention another one.

I recall you quoted TiVo as saying DISH’s new software still infringed because it still used a PID analyzer?

If this is the only thing TiVo has against the new software, as I recall all other infringing elements were removed. Then TiVo has no chance in a new software infringement suit at all.

Because all satellite receivers use some kind of PID analyzer, whether it is C-band, Ku band, Ka band, DBS, FTA…Actually PID analyzers existed long before D*, E* and TiVo ever existed. All satellite receivers, non-DVRs or DVRs, use the PID analyzer to reconstruct the incoming satellite signals.

If you cannot cite another of TiVo’s arguments against the new software, I’d say TiVo is doomed on a new trial on the new software infringement.


----------



## Curtis52

jacmyoung said:



> Because all satellite receivers use some kind of PID analyzer, whether it is C-band, Ku band, Ka band, DBS, FTA&#8230;Actually PID analyzers existed long before D*, E* and TiVo ever existed. All satellite receivers, non-DVRs or DVRs, use the PID analyzer to reconstruct the incoming satellite signals.


TiVo has not patented PID analysis. No duplication of single step of TiVos patent claim oconstitutes patent violation. It is the combination of steps that TiVo has patented and it is water under the bridge. Acombination of steps is called a process. TiVo has patented a process.


----------



## jacmyoung

Curtis52 said:


> TiVo has not patented PID analysis. No duplication of single step of TiVos patent claim oconstitutes patent violation. It is the combination of steps that TiVo has patented and it is water under the bridge. Acombination of steps is called a process. TiVo has patented a process.


Do you then agree TiVo's claim of new software infringement is doomed?


----------



## Curtis52

jacmyoung said:


> Do you then agree TiVo's claim of new software infringement is doomed?


Can you cite a step of TiVo's patented process that dish doesn't follow?


----------



## jacmyoung

Curtis52 said:


> Can you cite a step of TiVo's patented process that dish doesn't follow?


For the new software, none that I see. How about you cite yours, since TiVo must prove with clear and convincing evidence, not DISH.

I know TiVo tried, in their latest filing before 9/4, and I have refuted everyone of them in my past posts, I can dig them up again.


----------



## Curtis52

jacmyoung said:


> For the new software, none that I see. How about you cite yours, since TiVo must prove with clear and convincing evidence, not DISH.


I agree with you. Dish is infringing TiVo's patent as nearly as I can tell. Dish is using TiVo's patented process.


----------



## Ergan's Toupe

Curtis52 said:


> I agree with you. Dish is infringing TiVo's patent as nearly as I can tell. Dish is using TiVo's patented process.


Rogers has already said E*'s new software still infringes. So far he has been right every step of the way.

Besides, when Rogers asked Charlie to provide a working model Charlie said NO. If Charlie had nothing to hide he would have gladly produced what Tivo wanted.

I'll put my money on still infringes. :nono2:


----------



## Ergan's Toupe

jacmyoung said:


> Do you then agree TiVo's claim of new software infringement is doomed?


Maybe Charlie should pay an impartial party to say that the software no longer infinges?

Oh wait.... :lol:


----------



## James Long

jacmyoung said:


> Curtis52 said:
> 
> 
> 
> Can you cite a step of TiVo's patented process that dish doesn't follow?
> 
> 
> 
> For the new software, none that I see.
Click to expand...

If DISH is following every step of Tivo's patented process as you claim here then they continue to infringe.

Are you sure you meant that? DISH is following every step of Tivo's patented process in the new software?


----------



## phrelin

Good grief. Another 100+ posts since I last looked at this thread yesterday. I can't even tell if the full transcript has been posted here yet. If not, maybe that could be the starting point for a new thread?


----------



## Ergan's Toupe

phrelin said:


> I can't even tell if the full transcript has been posted here yet.


Not yet, but rumor has it it's available.


----------



## James Long

phrelin said:


> Good grief. Another 100+ posts since I last looked at this thread yesterday. I can't even tell if the full transcript has been posted here yet. If not, maybe that could be the starting point for a new thread?


Watch for a thread title change. 

Last I heard it wasn't quite available yet ... but the eyes are open.

*Where We Stand*

*Texas:* Judge Folsom heard arguments on September 4th for 40 minutes. A ruling is expected either by the end of the month or in November. We have a minute entry and a personal report from the court room and are waiting for a transcript

*Delaware:* Scheduling Conference set for September 11, 2008 is CANCELLED. Apparently in response to the Letter to The Honorable Joseph J. Farnan, Jr. from Steven J. Balick regarding : (i) TiVo's request for oral argument on the pending motion to dismiss; and (ii) TiVo's request that oral argument take place during the September 11, 2008 Rule 16 conference in this case.

*SCOTUS:* A private conference will be held on September 26th to decide if SCOTUS will hear the case. We'll probably find out if the appeal will be heard by October 6th.


----------



## Greg Bimson

jacmyoung said:


> If you cannot cite another of TiVo's arguments against the new software, I'd say TiVo is doomed on a new trial on the new software infringement.





Curtis52 said:


> For there to be infringement, all of the steps of a patent claim must be performed. Doing only one of the steps is not infringement.





Greg Bimson said:


> And in reverse, performing *all but one* of the claims of a patent is *not infringement*, unless the last step can be interpreted as an infringemnt by equivalents.


Pay attention to this paragraph...


> To the extent EchoStar actually addresses claims 31 and 61, its arguments ignore this court's claim construction and trial testimony - including testimony of EchoStar's own experts. First, EchoStar argues that its 50X and Broadcom units no longer "parse," i.e., analyze, before they "store" video and audio data. Opp. at 3-4. *With respect to the 50X boxes, this is the only non-infringement argument, and it cannot survive scrutiny.* "Parse" means "analyze." Dckt. No. 185, Claim Construction Order at 18 (Ex. D). It does not mean "index" or "separate." This claim construction is law of the case. AFG Indus., 375 F.3d at 1372 (prior claim construction is law of the case). EchoStar does not contend that the Adjudicated Receivers perform no analysis. In fact, the opinions of EchoStar's counsel admit that parsing is still performed by "PID filtering," which EchoStar's trial expert agreed meets the parsing limitation.


The only thing done to the software was to remove the indexing as it hits the media switch, thus relying on pure processor power and an algorithm to achieve trick play functionality. The problem is...


> 31 - A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> 61 - An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 
> 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;


It is the same language for claims 31 and 61. The removal of "indexing" is supposed to render this step incomplete, and therefore leaves DISH/SATS as no longer infringing.

The problem is that the PID function fulfills this step and is still an infringement.

I can tackle the Broadcom DVR's later, where another modification was to design-around a step, but also still supposedly does exactly what the construction claims as defined prohibit.


----------



## jacmyoung

Curtis52 said:


> I agree with you. Dish is infringing TiVo's patent as nearly as I can tell. Dish is using TiVo's patented process.


But I have read the infringement ruling, DISH's software infringed because of the several methods infringed (index file, broadcom chip use, media switch and buffer use), not because some process. Once the infringing elements are removed, no more infringement, this much is true after reading so many other cases.


----------



## jacmyoung

James Long said:


> If DISH is following every step of Tivo's patented process as you claim here then they continue to infringe.
> 
> Are you sure you meant that? DISH is following every step of Tivo's patented process in the new software?


Taking the words out of Mr. Chu: "no need to respond"


----------



## phrelin

James Long said:


> Watch for a thread title change.
> 
> Last I heard it wasn't quite available yet ... but the eyes are open.
> 
> *Where We Stand*
> 
> *Texas:* Judge Folsom heard arguments on September 4th for 40 minutes. A ruling is expected either by the end of the month or in November. We have a minute entry and a personal report from the court room and are waiting for a transcript
> 
> *Delaware:* Scheduling Conference set for September 11, 2008 is CANCELLED. Apparently in response to the Letter to The Honorable Joseph J. Farnan, Jr. from Steven J. Balick regarding : (i) TiVo's request for oral argument on the pending motion to dismiss; and (ii) TiVo's request that oral argument take place during the September 11, 2008 Rule 16 conference in this case.
> 
> *SCOTUS:* A private conference will be held on September 26th to decide if SCOTUS will hear the case. We'll probably find out if the appeal will be heard by October 6th.


Thanks!


----------



## jacmyoung

Greg Bimson said:


> Pay attention to this paragraph...The only thing done to the software was to remove the indexing as it hits the media switch, thus relying on pure processor power and an algorithm to achieve trick play functionality. The problem is...It is the same language for claims 31 and 61. The removal of "indexing" is supposed to render this step incomplete, and therefore leaves DISH/SATS as no longer infringing.
> 
> The problem is that the PID function fulfills this step and is still an infringement.
> 
> I can tackle the Broadcom DVR's later, where another modification was to design-around a step, but also still supposedly does exactly what the construction claims as defined prohibit.


Again the problem is the PID parsing is done by all satellite receivers, C-band, Ku-band, FTA, non-DVRs, DVRs...and PID parsing existed long long ago before E*. D* and TiVo ever existed, it is called a "prior art", as Curtis52 said, TiVo has no patent on PID parser, so this single PID argument to prove "parsing" as to still infringe is something takes only one second to be thrown out by the court.

You can try to tackle the Broadcom DVRs, I have refuted each and everyone of TiVo's arguements on those DVRs already.


----------



## Curtis52

jacmyoung said:


> But I have read the infringement ruling, DISH's software infringed because of the several methods infringed (index file, broadcom chip use, media switch and buffer use), not because some process. Once the infringing elements are removed, no more infringement, this much is true after reading so many other cases.


If there is more than a colorable difference there will be a new trial. If Dish uses the same process that tiVo has patented then Dish will be found to infringe. If there is no colorable difference then Dish still infringes and no new trial is needed.


----------



## nobody99

jacmyoung said:


> I have refuted each and everyone of TiVo's arguements on those DVRs already.


But no refutation on the deep doggy doo-doo that DISH is in because of contempt _even if_ the injunction later is found to be incorrect?

At this point, only settlement will get them out of that once contempt is found. Try to dicount the case I mentioned a page ago that the appeals court, in the same decision, found the injunction invalid, but the contempt valid. :lol: As Judge Folsom said on September 4, "Good luck with that."


----------



## Curtis52

jacmyoung said:


> Again the problem is the PID parsing is done by all satellite receivers, C-band, Ku-band, FTA, non-DVRs, DVRs...and PID parsing existed long long ago before E*. D* and TiVo ever existed, it is called a "prior art", as Curtis52 said, TiVo has no patent on PID parser, so this single PID argument to prove "parsing" as to still infringe is something takes only one second to be thrown out by the court.
> 
> You can try to tackle the Broadcom DVRs, I have refuted each and everyone of TiVo's arguements on those DVRs already.


It is the combination of steps that TiVo has a patent on, not a single step of the process. People have drilled steel for hundreds of years. Still, if a patent requires drilling a piece of steel as one of the steps of the process the patent is not invalid because of "'prior art".

The USPTO has already validated TiVo's patent after a year long reexamination instigated by Dish.


----------



## jacmyoung

Curtis52 said:


> If there is more than a colorable difference there will be a new trial. If Dish uses the same process that tiVo has patented then Dish will be found to infringe. If there is no colorable difference then Dish still infringes and no new trial is needed.


You don't need to remind me all the rest of the points because I have been saying the same myself for the 1,000th times

But can you define "use the same process"? How about give me an example how you consider the new software still uses the same TiVo patented "process"?


----------



## Ergan's Toupe

jacmyoung said:


> You don't need to remind me all the rest of the points because I have been saying the same myself for the 1,000th times
> 
> But can you define "use the same process"? How about give me an example how you consider the new software still uses the same TiVo patented "process"?


E*s new software still parses. That is all you need to know. :grin:


----------



## jacmyoung

Curtis52 said:


> It is the combination of steps that TiVo has a patent on, not a single step of the process. People have drilled steel for hundreds of years. Still, if a patent requires drilling a piece of steel as one of the steps of the process the patent is not invalid because of "'prior art".
> 
> The USPTO has already validated TiVo's patent after a year long reexamination instigated by Dish.


But if I simply drilled steel with my hand drill no one can say I have infringed on any patent.

This is exactly TiVo is saying, because DISH is drilling the steel (using the PID parser, which everyone is using long before TiVo existed) therefore DISH's new software still infringes.

If you can tell us what other steps TiVo is citing the new software I can tell you how I have totally refuted them in the past.

This PID parser thing holds no water. You said yourself TiVo holds no patent on PID parsing. And as far I can tell, this is the only thing Greg has found what TiVo 's argument. I am waiting for more steps cited by TiVo to discuss.

Oh wait, there were no other steps cited by TiVo.


----------



## Curtis52

jacmyoung said:


> But if I simply drilled steel with my hand tool no one can say I have infringed on any patent.


As I have already said, all the steps of a claim have to be followed for infringement to occur. A patented process is a combination of steps. Performing a single step is not by itself infringement.


----------



## jacmyoung

Curtis52 said:


> As I have already said, all the steps of a claim have to be followed for infringement to occur. A patented process is a combination of steps. Performing a single step is not by itself infringement.


Agreed!

Let me also say again, TiVo so far has cited no steps (other than this PID parser) to prove the DISH new software followed its patented process.


----------



## Curtis52

jacmyoung said:


> Agreed!
> 
> Let me also say again, TiVo so far has cited no steps (other than this PID parser) to prove the DISH new software followed its patented process.


TiVo hasn't been granted discovery yet. All they've done is refute Dish's claim that they have stopped analysis of the signal. Dish obviously analyzes the signal.


----------



## Greg Bimson

jacmyoung said:


> This is exactly TiVo is saying, because DISH is drilling the steel (using the PID parser, which everyone is using long before TiVo existed) therefore DISH's new software still infringes.


Without being rude, I don't believe you are paying attention...


> First, EchoStar argues that its 50X and Broadcom units no longer "parse," i.e., analyze, before they "store" video and audio data. Opp. at 3-4. With respect to the 50X boxes, this is the only non-infringement argument, and it cannot survive scrutiny.


On the 50X boxes, DISH/SATS states they no longer infringe because the receivers no longer index before they store the video and audio data. *It is the only argument presented by DISH/SATS on the 50X receivers that they no longer infringe.*


> In fact, the opinions of EchoStar's counsel admit that parsing is still performed by "PID filtering," which EchoStar's trial expert agreed meets the parsing limitation.


DISH/SATS own counsel agrees that the "PID filtering" infringes on that step.

If this is the only argument that DISH/SATS has presented as "evidence" they no longer infringe, then the 50X receivers still infringe.

So if DISH/SATS walks into court and states they no longer infringe because they do not index the data before storage, yet the parsing limitation is met by the PID filitering, then the infringement is still there...


jacmyoung said:


> This PID parser thing holds no water. You said yourself TiVo holds no patent on PID parsing. And as far I can tell, this is the only thing Greg has found what TiVo 's argument. I am waiting for more steps cited by TiVo to discuss.
> 
> Oh wait, there were no other steps cited by TiVo.


TiVo did not need to cite any other steps regarding the 50X receivers, because it is the only step DISH/SATS claimed to no longer use, and therefore, no longer infringe.

Because DISH/SATS, on their reply to the motion for contempt, stated the 50X receivers no longer infringe because they no longer index. It was the only argument that DISH/SATS made, and TiVo refuted it.

TiVo does not need to hold a patent on PID filtering in order have it as a step in a claim on their patent. As long as it meets the limitation, *and DISH/SATS counsel admits it does*, then DISH/SATS meets the limitation of the step in the claim. If the only argument presented by DISH/SATS that they no longer infringe is because they no longer perform one step, which is proven that is still being utilized, then all steps in the claim are being utilized, which means the receiver infringes.


----------



## scooper

You do realize that "the Tivo process" wouldn't start until until the data is past the PID parser , where you have the selected audio / video streams ?


----------



## James Long

Curtis52 said:


> TiVo hasn't been granted discovery yet. All they've done is refute Dish's claim that they have stopped analysis of the signal. Dish obviously analyzes the signal.


DISH analyzes the signal, but do they analyze the signal?

Without digging through the pending patent again, IIRC they avoid the indexing analysis that Tivo claims. The only analysis taking place is the analysis typical of a non-DVR. If DISH is not permitted to perform the basic analysis of a non-DVR then they can't offer a satellite receiver.

Tivo's analysis created an index and set jump points for the skip features and other trick plays to make it easy for an underpowered/ low CPU powered device to jump around in the files and find a specific point. DISH's new patent claim says they don't do that. DISH uses data rates to guess how far to jump to perform similar features.

The difference ... on a Tivo or old DISH DVR pressing back is 10 seconds, pressing forward is 30 seconds. If you recorded a channel running a stopwatch the jumps would be reasonably precise. On a new software DISH DVR the precision is gone ... sometimes 10 seconds is shorter or longer than 10 seconds. You might even observe massive jumps when the guess is really bad.

As long as DISH does not analyze the signal in a way that Tivo holds a patent to they should be fine. As stated, a patent holder may hold a patent for a board with a hole drilled in it, but that doesn't mean that they hold patent on all boards with holes drilled in them.


----------



## Greg Bimson

scooper said:


> You do realize that "the Tivo process" wouldn't start until until the data is past the PID parser , where you have the selected audio / video streams ?


Doesn't seem like that to me. Step from claim 31/61 is below.


James Long said:


> Without digging through the pending patent again, IIRC they avoid the indexing analysis that Tivo claims. The only analysis taking place is the analysis typical of a non-DVR. If DISH is not permitted to perform the basic analysis of a non-DVR then they can't offer a satellite receiver.


And of course, a regular satellite receiver does not store said video and audio data, so regular satellite receivers are immune from this because there is no way for them to infringe this step:


> 31 - A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;


A "physical data source" is not software. The receiver:
accepts broadcast data from an input device;
parses video and audio data from said broadcast data (analyzes the data);
and temporarily stores said video and audio data.

I do invite everyone to re-read DISH/SATS response in opposition to TiVo's motion for contempt, again. Look at the argument being made against non-infringement. Quite a bit was changed, but not enough to completely change DISH/SATS' process. DISH/SATS' process still appears *to satisfy every step* in of claims 31 and/or 61 in the Time Warp patent.


----------



## jacmyoung

Curtis52 said:


> TiVo hasn't been granted discovery yet. All they've done is refute Dish's claim that they have stopped analysis of the signal. Dish obviously analyzes the signal.


TiVo already accepted DISH's claim that the new software no longer uses the index file, no longer parses the A/V streams and save them in that index file before storage on the hard drive, no longer utilizes that Broadcam chip, and no longer uses that buffer or media switch to store temporary info.

There is nothing more to discover when TiVo already agreed with DISH that the new software no longer does all the above.

TiVo also does not dispute what the DISH new software is actually doing right now, as DISH claimed. So again there is nothing more to discover, the only thing TiVo cited so far is that DISH new software still uses that PID parser, as both you and I agreed is a non issue.

Did TiVo prove with clear and convincing evidence DISH's new software still infringes? They did not even list a single reasonable piece of evidence, all the evidences used to prove infringement by the old software had been removed.

DISH only needs to establish the doubt whether the new software still infringes or not. To do so they only need to list one of the above many elements they removed. As you said yourself, to prove infringement, all the steps must be similar, so if DISH just listed one step that was removed, the doubt would have been established, yet DISH had removed all the steps.

If you are a betting man, what are the odds on each side?


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## James Long

There seem to be a lot of claims in that post, jacmyoung. Care to site references?


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## James Long

Greg Bimson said:


> And of course, a regular satellite receiver does not store said video and audio data, so regular satellite receivers are immune from this because there is no way for them to infringe this step.


I'm assuming storing the parsed data for a microsecond or more in an output buffer wouldn't be considered the same thing?


----------



## Greg Bimson

jacmyoung said:


> Did TiVo prove with clear and convincing evidence DISH's new software still infringes? They did not even list a single reasonable piece of evidence, all the evidences used to prove infringement by the old software had been removed.


Care to try again?


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


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## CuriousMark

James Long said:


> The only analysis taking place is the analysis typical of a non-DVR. If DISH is not permitted to perform the basic analysis of a non-DVR then they can't offer a satellite receiver.


Sure they can, it just has to skip doing one of the other DVR steps, such as saving to a hard drive or being controlled by user input. This step is common to both, yes. It can be construed to be a step in the Time Warp Patent claim also.

Whether the judge will consider that basic analysis sans the indexing analysis as merely colorably different or not is going to be a real question at some point. Dish says more than colorable, TiVo refutes saying PID processing is enough. Both arguments are sound, one will be chosen by the judge if and when the time comes.


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## Greg Bimson

James Long said:


> I'm assuming storing the parsed data for a microsecond or more in an output buffer wouldn't be considered the same thing?


I could simply post all of the steps in claim 31 and 61, but I am certain that a non-DVR cannot use most of those steps...


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## jacmyoung

Greg Bimson said:


> Without being rude, I don't believe you are paying attention...On the 50X boxes, DISH/SATS states they no longer infringe because the receivers no longer index before they store the video and audio data. *It is the only argument presented by DISH/SATS on the 50X receivers that they no longer infringe.*DISH/SATS own counsel agrees that the "PID filtering" infringes on that step.
> 
> If this is the only argument that DISH/SATS has presented as "evidence" they no longer infringe, then the 50X receivers still infringe.
> 
> So if DISH/SATS walks into court and states they no longer infringe because they do not index the data before storage, yet the parsing limitation is met by the PID filitering, then the infringement is still there...TiVo did not need to cite any other steps regarding the 50X receivers, because it is the only step DISH/SATS claimed to no longer use, and therefore, no longer infringe.
> 
> Because DISH/SATS, on their reply to the motion for contempt, stated the 50X receivers no longer infringe because they no longer index. It was the only argument that DISH/SATS made, and TiVo refuted it.
> 
> TiVo does not need to hold a patent on PID filtering in order have it as a step in a claim on their patent. As long as it meets the limitation, *and DISH/SATS counsel admits it does*, then DISH/SATS meets the limitation of the step in the claim. If the only argument presented by DISH/SATS that they no longer infringe is because they no longer perform one step, which is proven that is still being utilized, then all steps in the claim are being utilized, which means the receiver infringes.


You did not understand what I said, of course the "PID filtering" still qualifies as parsing, so it may meet the parsing limitation, but the PID filtering cannot be used to find infringement, because it was not used to find infringement on the old software.

Remember all satellite receivers use PID filtering, and the old software also used the PID filtering, but the PID filtering used by the old software was never used to be one of the steps to find infringement because it cannot, it is a prior art, which TiVo holds no patent on.

The reason the 50X DVRs was found to infringe was because they used that index file, not because they used the PID filter. So when the index file, the only thing used to find infringement, was removed, they no longer infringe. TiVo cannot bring in another item, the PID filter, to try to find the 50Xs infringing again, especially when the PID filter was not found to infringe in the first place.

TiVo's such argument will be thrown out in less than a second.

Now had both the index file, and the PID filtering were cited to have infringed, then by simply removing the index file, but still keeping the PID filtering, the new software may still infringe, but DISH only needs to remove one step (the index file) to establish the doubt, that is enough avoid a contempt.

Later if in a new trial TiVo may say look even though the index file was removed, but the PID filtering still was there, TiVo might still prove infringement of the new software. But as I said this is not the case, PID filtering does not infringe.

I hope you agree for your argument to stand, all satellite receivers, DVR or not, C-band, Ku-band, FTA or DBS, must all infringe on TiVo's patent, because they all have the PID filtering.


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## nobody99

jacmyoung said:


> TiVo's such argument will be thrown out in less than a second.


Wow, are you getting a little upset there jacy?


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## Greg Bimson

jacmyoung said:


> You did not understand what I said, of course the "PID filtering" still qualifies as parsing, so it may meet the parsing limitation, but the PID filtering cannot be used to find infringement, because it was not used to find infringement on the old software.


Source?


jacmyoung said:


> Remember all satellite receivers use PID filtering, and the old software also used the PID filtering, but the PID filtering used by the old software was never used to be one of the steps to find infringement because it cannot, it is a prior art, which TiVo holds no patent on.


Here we go again...


jacmyoung said:


> The reason the 50X DVRs was found to infringe was because they used that index file, not because they used the PID filter. So when the index file, the only thing used to find infringement, was removed, they no longer infringe. TiVo cannot bring in another item, the PID filter, to try to find the 50Xs infringing again, especially when the PID filter was not found to infringe in the first place.


I thought that the jury signed a sheet that simply asked whether or not there was infringement on claims. I didn't think there was a questionnaire detailing why the jury found infringement.

Besides, look at post 539, where the PID analysis WAS PRESENTED DURING TRIAL, so it definitely fulfilled the step of the claim....


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## peak_reception

nobody99 said:


> I should have quoted the summary from the case, it lays it all out quite simply. The appeals court overturned the injunction, while _simultaneously_ affirming contempt for ignoring it.





> To summarize, we conclude that the district court was unauthorized...to order Novak...to appear before it to facilitate settlement discussions. Therefore, that order was invalid. Nevertheless, Novak was required to obey the order until it was vacated; instead, he willfully disregarded it. For that, the district court properly convicted him of criminal contempt. Accordingly, the district court's decision is AFFIRMED


 I didn't have time (or energy) to read through the entire case you linked to nobody99, but the summation does put it all in focus. Job #1 of any party to any litigation is to Obey The Court! Seems so obvious and yet some decide, for whatever reason, to skip over that essential step in pursuit of their own brand of justice. Interesting that the appeals court overturned the injunction but still found Novak In Contempt.


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## jacmyoung

Simply meeting the parsing limitation is not enough to find infringement, the parsing must also not fall in the following:

1)	A prior art.
2)	An art that is obvious to persons of ordinary skills.

The reason the parsing by the index file was good to find infringement was because:

1)	It was not a prior art, no satellite receivers before used such index file.
2)	It was an art not obvious to persons of ordinary skills.

But once that index file is no longer there, no longer used, the infringing evidence is gone.

The art of the PID filtering cannot be used to prove infringement because it is a prior art, and in fact it may also be an art obvious to persons of ordinary skills at the time of the use by the DISH DVRs.


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## CuriousMark

Those limitation apply to the entire claim, not individual steps of the claim.


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## jacmyoung

Greg Bimson said:


> Source?


Because the PID filtering was not found to have infringed.



> Here we go again...I thought that the jury signed a sheet that simply asked whether or not there was infringement on claims. I didn't think there was a questionnaire detailing why the jury found infringement.


The jury did not find the PID filtering infringe, even though it may have met the claim limitation. As a result, TiVo can not suddenly say now your PID filtering still infringe. There was no such verdict. To prove that the PID filtering is infringing, TiVo needs a new trial, and of course will fail again.


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## nobody99

jacmyoung said:


> Simply meeting the parsing limitation is not enough to find infringement, the parsing must also not fall in the following:
> 
> 1)	A prior art.
> 2)	An art that is obvious to persons of ordinary skills.
> 
> The reason the parsing by the index file was good to find infringement was because:
> 
> 1)	It was not a prior art, no satellite receivers before used such index file.
> 2)	It was an art not obvious to persons of ordinary skills.
> 
> But once that index file is no longer there, no longer used, the infringing evidence is gone.
> 
> The art of the PID filtering cannot be used to prove infringement because it is a prior art, and in fact it may also be an art obvious to persons of ordinary skills at the time of the use by the DISH DVRs.


Wow, you just love making stuff up, don't you?


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## nobody99

peak_reception said:


> Interesting that the appeals court overturned the injunction but still found Novak In Contempt.


That, in a nutshell, is what I found so interesting about the case. If my non-legal brain is even close to understanding it, this makes it seem like contempt should be a slam-dunk.


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## Curtis52

jacmyoung said:


> Simply meeting the parsing limitation is not enough to find infringement, the parsing must also not fall in the following:
> 
> 1) A prior art.
> 2) An art that is obvious to persons of ordinary skills.


An infringer only needs to do all the steps in a patented process to infringe the patent. The patent has already been ruled valid.


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## Greg Bimson

Conversely, if an infringer implements *every step but one* within a claim of a patent, infringement cannot be found.

That is DISH/SATS defense; they no longer infringe because by removing the index file, they no longer parse. On the 50X DVR's, their software no longer indexes. That is the only defense against current infringement, and it is true. However, *the receiver* still satisfies the limitations against the parsing (analysis) of the incoming data stream. If the receiver still analyzes the incoming data stream, it must still infringe, as DISH/SATS did not argue that anything else was changed with respect to the step limitations within the claims.


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## James Long

It would seem that the analysis that the receiver does is not Tivo's property ... it is simply an analysis that receivers do. DISH has ceased doing the analysis that is Tivo's property.

To say that no analysis at all may be done ... even one outside of the DVR process ... is silly. It gives DISH the choice of creating a device that doesn't analyze signals but IS a DVR that directly competes with Tivo's product or a receiver that does typical non-infringing DBS analysis but can't be a DVR.

In order for the analysis to cause infringement it needs to be 1) owned by Tivo, 2) part of the DVR process and 3) not a separate non-DVR process of the receiver. Anything else is overreaching.


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## Greg Bimson

James Long said:


> It would seem that the analysis that the receiver does is not Tivo's property ... it is simply an analysis that receivers do. DISH has ceased doing the analysis that is Tivo's property.


A patent was granted for the telephone, yet the telegraph predated the telephone and the sound was transmitted through wires. Yet the patent on the telephone also went through wires.

Logical or not, it has already been found that the PID filtering is an analysis which meets the limitation on this part of the step in claims 31 and 61.

Just because a process may predate the patent does NOT mean that patent is precluded from using that process. Heck, the Time Warp patent itself mentions that MPEG is a format that can be utilized, and last I checked TiVo did not "own" the MPEG patent.


James Long said:


> In order for the analysis to cause infringement it needs to be 1) owned by Tivo, 2) part of the DVR process and 3) not a separate non-DVR process of the receiver. Anything else is overreaching.


In order for analysis to cause infringement, analysis on the data simply must occur, along with meeting the limitation of every step of a claim of a patent. That's patent law.

And the PID filtering is analysis, which has already met the limitation of the step in the claim of the patent.


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## bobcamp1

James Long said:


> The patent was filed in 2007 (October, IIRC) the software was noted in an SEC filing in February of 2008 (after the appeals court ruling) and the Texas court was not "notified" until May.
> 
> Once the patent was filed DISH was protected ... instead they waited several months to clue in the court when there was no need to keep it "secret".


Not to drag this discussion from the fascinating PID discussion, but there certainly was a need to keep it secret.

I can imagine the conversation.

Dish: "Your Honor, good news! We have wasted the last two years of the court's time! We have a workaround. Of course, we don't actually have one. We don't have the code finished yet, nor did we test it, nor do we have a rollout plan yet. We just hired a couple of guys to determine if there was a workaround, and we submitted a patent. The patent hasn't even been approved yet -- it could be rejected. But could you please not bother giving us an injunction? The work-around will be available 'any day' now.

And don't use the fact that we have a work-around to justify an injunction. The work-around isn't as good as the original, and our customers will notice that our trick play features don't work as well. And if you do give us an injunction, could you please not include the new still-possibly-infringing software with it?"

Tivo: "Your Honor, we request a copy of this workaround. And until you can determine if it infringes, we want the injunction to cover it and all future updates as well. We also want to ban Dish from any further development or testing of this code until the court has looked at it."

Judge Fossom: "Sounds like a good idea to me. I hate these guys anyway. So ordered."

I have been in this situation before. And every time, the patent lawyer tells me to keep the work-around to myself. Judges don't like to be kept in the dark. But the worst thing you can do is tell them what's going on.


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## scooper

Greg Bimson said:


> Logical or not, it has already been found that the PID filtering is an analysis which meets the limitation on this part of the step in claims 31 and 61.
> 
> Just because a process may predate the patent does NOT mean that patent is precluded from using that process. Heck, the Time Warp patent itself mentions that MPEG is a format that can be utilized, and last I checked TiVo did not "own" the MPEG patent.In order for analysis to cause infringement, analysis on the data simply must occur, along with meeting the limitation of every step of a claim of a patent. That's patent law.
> 
> And the PID filtering is analysis, which has already met the limitation of the step in the claim of the patent.


And to say the PID filtering is the kind of analysis that Tivo is doing is stretching it so far - any common person of ordinary skill would instantly see that this is part and parcel of satellite operation - not part of the "Tivo process". To say otherwise would mean that DBS operators and cable operators can't operate without licenses from Tivo - and I'm not even talking about DVRs ! To say this is to give Tivo far more credit than they deserve.

James had it stated right - Tivo's "analysis" is all about indexing the A/V streams coming from a source to enable underpowered CPUs to deal with trick play functions.


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## Curtis52

I don't see any mention of indexing.



> B. Claims 31 and 61
> 1. "parses video and audio data from said broadcast data"
> TiVo argues these terms should be construed to mean "analyzes video and audio
> data." See TiVo's Opening Br. at 9-11; TiVo's Op. Br. at 11-13; '389 patent at cols. 5:3- 6, 5:33-36, 6:36-58, & Fig. 6; TiVo's Markman Slides at 135-39; see also id. at col. 12:48-50 (". . . parses said MPEG stream . . .").
> 
> EchoStar argues "parses" means "separates," and "parses video and audio data
> from said broadcast data" means "analyzes the content of broadcast data and from it
> transmits two distinct components: one video component and one audio component." See '389 patent at Fig. 3 & col. 4:23-29; EchoStar's Opening Br. at 11-12; EchoStar's Response Br. at 7-10; EchoStar's Slide Presentation at 76-98, 123-24.
> 
> As was the Court's analysis of the term "parses" in the context of claims 1 and 32,
> the Court similarly finds that "parse" as it is used in claims 31 and 61 means "analyzes." These terms are recited clearly by claims 31 and 61 and understood by persons of ordinary skill in the art. See '389 patent at cols. 14:55-58, 18:5-8. This definition is consistent with the use of the term in claims 31 and 61 and the context of the specification. See, e.g., '389 patent at col. 4:23-33 & Fig. 3 (describing the analysis of interleaved video and audio streams from an incoming MPEG stream).
> 
> *Therefore, the court defines "parses video and audio data from said broadcast
> data" as "analyzes video and audio data from the broadcast data*."


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## Curtis52

scooper said:


> And to say the PID filtering is the kind of analysis that Tivo is doing is stretching it so far - any common person of ordinary skill would instantly see that this is part and parcel of satellite operation - not part of the "Tivo process". To say otherwise would mean that DBS operators and cable operators can't operate without licenses from Tivo - and I'm not even talking about DVRs ! To say this is to give Tivo far more credit than they deserve.


Again, no one infringes a patent by performing a single step in a patented process. No one violates a patent by performing 99.99999% of the steps in a patented process. To infringe a patent, 100% of the steps have to be performed. TiVo does not claim to have a patent on analysis. They have a have a patent on an entire process that includes analysis as one of the steps. All the other steps would have to also be performed for infringement.


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## scooper

Well - this court is wrong and this point needs appealed.


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## James Long

bobcamp1 said:


> Not to drag this discussion from the fascinating PID discussion, but there certainly was a need to keep it secret.


The trouble is, DISH didn't keep it secret ... they couldn't once a patent application is made. Tivo and otehr competitors could have easily found that filing. Which is why I referred to the new software as "secret" with the quotes. It wasn't a real secret, it was just a failure of DISH to keep the court informed.

While we all can imagine a conversation where DISH describes vaporware and Tivo wants discovery on said vaporware, perhaps slowing the development and deployment of the actual software (it is all vaporware until deployed). We won't have to imagine the conversation that DID occur because of DISH's withheld information much longer.



> Tivo: "Your Honor, we request a copy of this workaround. And until you can determine if it infringes, we want the injunction to cover it and all future updates as well. We also want to ban Dish from any further development or testing of this code until the court has looked at it."
> 
> Judge Fossom: "Sounds like a good idea to me. I hate these guys anyway. So ordered."


Want a nugget of reality in the conversation? Judge Folsom isn't that biased.

A second nugget of reality: Tivo attempted to have the ViP-622 added by name to the injunction as only colorably different. The judge's response wasn't a "sure Tivo, anything for you - I hate these guys". Judge Folsom stuck with the models adjudicated as infringing "and those only colorably different" as required by law. No instant judgment of the 622 as infringing without a trial.


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## scooper

Curtis52 said:


> I don't see any mention of indexing.


Ok - replace the word "indexing" (a specific form of analysis) with the general term "analyzes" - Happy now ?


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## scooper

So, James, if you were Echostar / counsel, when would YOU have notified the court about the work around ? Personally, I would have done just the way they did - in the briefs for 5/30 meeting. That way, I get the workaround deployed and demonstrated that it works, before the injunction comes into effect. Also, this would prevent Tivo from getting an injunction against me deploying my legally permissable modification.


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## nobody99

scooper said:


> me deploying my *legally permissable* modification.


In your opinion, of course.


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## Curtis52

scooper said:


> Ok - replace the word "indexing" (a specific form of analysis) with the general term "analyzes" - Happy now ?


Indexing is not analysis. Nothing can be indexed until after analysis has occurred. There are lots of things that can be done with data that has been analyzed. Indexing is one of them but analysis has to come first.


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## Greg Bimson

scooper said:


> Well - this court is wrong and this point needs appealed.


Again, we are dealing with procedure. Whatever argument DISH/SATS is taking to SCOTUS would need to include this point. However, SCOTUS will only listen to arguments on errors applied at the Court of Appeals level.

Because DISH/SATS never brought up the PID filtering that was introduced during the trial on their appeal to the Court of Appeals, and that PID filtering is a limitation of the analysis in that step of the claim as found during the trial, it ALREADY meets the limitations and CAN NO LONGER be appealed.


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## scooper

Let's throw another wrinkle for Greg to think about - 

Let's say I want to record "Mythbusters" for one hour on Discovery. You're saying that in order to NOT violate the patent, an Echostar DVR must record the entire transponder worth for that hour ?


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## peak_reception

scooper said:


> So, James, if you were Echostar / counsel, when would YOU have notified the court about the work around ? Personally, I would have done just the way they did - in the briefs *for 5/30 meeting*. That way, I get the workaround deployed and demonstrated that it works,* before the injunction comes into effect*. Also, this would prevent Tivo from getting an injunction against me deploying my legally permissable modification.


 I thought the injunction went into effect on April 18th.

p.s. where is the 9-4 transcript? I thought it would be available by now.


----------



## Greg Bimson

bobcamp1 said:


> Dish: "Your Honor, good news! We have wasted the last two years of the court's time! We have a workaround. Of course, we don't actually have one. We don't have the code finished yet, nor did we test it, nor do we have a rollout plan yet. We just hired a couple of guys to determine if there was a workaround, and we submitted a patent. The patent hasn't even been approved yet -- it could be rejected. But could you please not bother giving us an injunction? The work-around will be available 'any day' now.


But now this needs to be reflected in reality...

Dish: "Your Honor, good news! We have wasted the last two years of the court's time! We have a workaround. We started downloading the design-around in October, 2006, and we finished the downloading all of the recievers by March, 2007. The patent hasn't even been approved yet -- it could be rejected. But could you please not bother giving us an injunction?

And that is the whole point.

As James pointed out, the patent application for the new, indexless software was filed in October 2007, about one year after DISH/SATS already started implementing it.

DISH/SATS could have addressed the court with this fact prior to appeal, and even during appeal. After all, DISH/SATS had a full year from the time the software was made public to file a patent application upon it.

The problem is even then, it appears that just like TiVo requires the use of the MPEG patent in their patented Time Warp process, DISH/SATS indexless DVR software may require TiVo's patented Time Warp process in order to work. DISH/SATS could have their patent approved, and still violate the Time Warp patent.


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## Curtis52

Greg Bimson said:


> As James pointed out, the patent application for the new, indexless software was filed in October 2007, about one year after DISH/SATS already started implementing it.


Filed:  *August 29, 2006*


----------



## dgordo

peak_reception said:


> I thought the injunction went into effect on April 18th.
> 
> p.s. where is the 9-4 transcript? I thought it would be available by now.


I hear it is available but not on pacer.


----------



## Greg Bimson

scooper said:


> Let's throw another wrinkle for Greg to think about -
> 
> Let's say I want to record "Mythbusters" for one hour on Discovery. You're saying that in order to NOT violate the patent, an Echostar DVR must record the entire transponder worth for that hour ?


So here is the claim construction for this case, as provided by Curtis52:

Therefore, the court defines "parses video and audio data from said broadcast 
data" as "analyzes video and audio data from the broadcast data."

Although there are steps to the given claim, the steps do not need to be performed in order (unless an order is specified in the patent).

In order to be clear of infringement of the patent, DISH/SATS must not "[analyze] video and audio data from the broadcast data", *at any point*

So if the entire transponder is saved, and then during the process of Time Warp the receiver, "analyzes video and audio data from the broadcast data," this section of the step would be met.


> 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;


Imagine if you wanted to trick play live TV.

The DVR saves the entire transponder Mythbusters is on. The physical data source accepts the broadcast data (the transponder) from an input device, and then the receiver analyzes the broadcast data, temporarily stores their MPEG components to be sent to the television.

I know. I know. Not exactly what TiVo intended when they received their patent.

Then again, TiVo was building their DVR to accept broadcast data, and the broadcast data from a terrestrial digital station works exactly like the satellite version, with PID filtering of multiple channels transmitted over a single frequency.


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## jacmyoung

Greg Bimson said:


> Conversely, if an infringer implements *every step but one* within a claim of a patent, infringement cannot be found.
> 
> That is DISH/SATS defense; they no longer infringe because by removing the index file, they no longer parse. On the 50X DVR's, their software no longer indexes. That is the only defense against current infringement, and it is true. However, *the receiver* still satisfies the limitations against the parsing (analysis) of the incoming data stream. If the receiver still analyzes the incoming data stream, it must still infringe, as DISH/SATS did not argue that anything else was changed with respect to the step limitations within the claims.


First off, you cannot aruge against the notion that if the PID filter and it alone can prove infringement, then all sat receivers, C-Band, Ku-Band, FTA, non-DVRs, DVRs, all infringe. The logic is simply flawed.

Secondly, if you truly agree with Curtis52, then you must also agree the 50x DVRs must have followed all of the steps of the Tivo's patent claim constructions, not just the single use of the index file.

In another word, the 50x DVRs had several elements not just the index file, that combined to have caused infringement. And DISH's new software has removed all of them, the index file, the parsing before storage, the media switch or the buffer to store temporary command info.

For TiVo to insist the only thing DISH's new software removed was the index file, is wrong, becuuse DISH said they removed all elements used to prove infringement, whether for the 50x DVRs or for the Broadcom DVRs.


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## nobody99

jacmyoung said:


> First off, you cannot aruge against the notion that if the PID filter and it alone can prove infringement, then all sat receivers, C-Band, Ku-Band, FTA, non-DVRs, DVRs, all infringe. The logic is simply flawed.


When did he ever say that? He's talking about what is known about the new software as it relates specifically to the adjudicated devices. Please, try to pay attention.


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## jacmyoung

Curtis52 said:


> I don't see any mention of indexing.


Yet the indexing was used as one of the steps to prove infringement.

Are you to say then DISH's old software did not infringe because the TiVo's patent did not mention "indexing"? If so it did not mention "PID filtering" either.

Curtis52, you know better than this. PID filtering may fit the "parsing" limitation but it cannot be used as evidence to prove infirngement, because it is a prior art.

Greg however takes whatever TiVo says as true, and roll with that. But Greg you only need to ask one thing, why wasn't the "PID filtering" used in the trial to prove infringement? Because it could not, as the court said it was a prior art.


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## nobody99

jacmyoung said:


> Because it could not, as the court said it was a prior art.


Please stop making stuff up.


----------



## jacmyoung

BTW where is the full transcript? I thought it was ready.


----------



## jacmyoung

nobody99 said:


> Please stop making stuff up.


This is not the first time you accused me of making stuff up, but have you read the full court docs?

Your buddy the other guy accused me of the same thing many times, because he never read the court papers nor read my earlier quotes before.


----------



## Ergan's Toupe

jacmyoung said:


> BTW where is the full transcript? I thought it was ready.


Give me $58.50 and I'll send you a copy.


----------



## Curtis52

jacmyoung said:


> Curtis52, you know better than this. PID filtering may fit the "parsing" limitation but it cannot be used as evidence to prove infirngement, because it is a prior art.


TiVo doesn't claim to have a patent on analysis. It doesn't matter whether someone has ever done analysis prior to TiVo's patent. If someone has drilling a piece of steel as one of the steps in a patented process it doesn't make any difference that people have been drilling pieces of steel for hundreds of years. The term "prior art" only applies if someone has previously done the whole process not just bits and pieces of the process. The patent is on the whole process.


----------



## Greg Bimson

jacmyoung said:


> First off, you cannot aruge against the notion that if the PID filter and it alone can prove infringement, then all sat receivers, C-Band, Ku-Band, FTA, non-DVRs, DVRs, all infringe. The logic is simply flawed.


What I can argue is that DISH/SATS states they no longer "analyze", so because that step limitation is not met, they do not infringe. DISH/SATS states did not address any other step limitations, just the analysis.

However, because PID filtering is an analysis, it still analyzes, and meets the step limitation.


jacmyoung said:


> For TiVo to insist the only thing DISH's new software removed was the index file, is wrong, becuuse DISH said they removed all elements used to prove infringement, whether for the 50x DVRs or for the Broadcom DVRs.


From DISH/SATS opposition in response to TiVo's motion for contempt:


> II STATEMENT OF FACTS
> A) EchoStar Faced a Challenge After the Verdict
> B) EchoStar Designed Non-Infringing Software
> 1) EchoStar's New Design Eliminated Pre-Storage Analysis and Indexing
> 2) EchoStar's New Design Eliminated Automatic Flow Control in the Broadcom Boxes
> C) EchoStar's Design-Around Efforts Were Not "Secret"


So, in the Statement of Facts, DISH/SATS says they've designed non-infringing software. How? They removed the indexing prior to storage, and eliminated the auto-matic flow control in the Broadcom boxes.

So they removed the index table. DISH/SATS asserts, "In this _indexless_ design, no analysis of the television programming data takes place prior to storage."

Except the trial also found that analysis occurs by PID filtering, a point also covered by the "analysis" step. *DISH/SATS never addressed the PID filtering that they admitted to during trial, because they couldn't get around it.*

DISH/SATS may have removed the index table. DISH/SATS has stated they no longer analyze because of the lack of an index table. Only one of those statements are true.


----------



## scooper

Greg Bimson said:


> I know. I know. Not exactly what TiVo intended when they received their patent.
> 
> Then again, TiVo was building their DVR to accept broadcast data, and the broadcast data from a terrestrial digital station works exactly like the satellite version, with PID filtering of multiple channels transmitted over a single frequency.


Hence our arguement that the PID filtering cannot be part of the Tivo process. You do realize a DBS transponder is on the order of 40 Mbit/sec ? (or is it 40Mbyte/sec - probably). The Tivo process starts AFTER you have the A/V streams of the desired program separated from the transponder stream, not before. Even in the Digital terresetrial environment, this notion works - you get the Audio and video streams separated from the ATSC stream by the tuner before it starts processing.


----------



## Curtis52

scooper said:


> The Tivo process starts AFTER you have the A/V streams of the desired program separated from the transponder stream, not before.


What are you defining as the "Tivo process"? Where are you getting the definition? The process is outlined in claim 31. Here is how it starts:


> "31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data; "


----------



## scooper

Physical data source - the outputs of the tuners (or the output of the MPEG encoder, in the case of NTSC A/V) - i.e. the A/V streams. The rest follows naturally.


----------



## Ergan's Toupe

jacmyoung said:


> This is not the first time you accused me of making stuff up,


I'm sure it won't be the last either. :lol:


----------



## jacmyoung

Greg and Curtis52, TiVo's logic cannot prevail for a very simple reason:

All sat receivers use PID filtering, it is a must for sat receivers.

TiVo is now trying to use this PID filtering, and this one only, to prove that the DISH sat DVRs still infringe.

If the court let such argument fly, the court must agree that TiVo will be able to successfully accuse all sat receivers infringe on its patent, whether be it a C-band receiver, an FTA receiver, a non DVR sat receiver, or a DVR sat receiver.

There is no way the court will let that happen.


----------



## Curtis52

jacmyoung said:


> Greg and Curtis52, TiVo's logic cannot prevail for a very simple reason:
> 
> All sat receivers use PID filtering, it is a must for sat receivers.
> 
> TiVo is now trying to use this PID filtering, and this one only, to prove that the DISH sat DVRs still infringe.
> 
> If the court let such argument fly, the court must agree that TiVo will be able to successfully accuse all sat receivers infringe on its patent, whether be it a C-band receiver, an FTA receiver, a non DVR sat receiver, or a DVR sat receiver.


Those devices would only infringe if they do all the steps outlined in TiVo's patent not just anaysis.


----------



## STDog

Not sure I even dare jump in here. And I see a lost has transpired since this post (busy thread for sure)



nobody99 said:


> As Greg has pointed out all along, there is procedure to follow. Look at the similarites. DISH disregarded the district cout's order based on thier own evaluation of its correctness.


I disagree. DISH did not disregard, let alone question it's correctness.

The interpreted the order differently than TiVo, such that they disabled the infringing system (hardware+software) and replaced with a non-infringing system.

The infringing system relies on both the hardware and the software. Neither infringes without the other, because neither does anything with out the other.

Without the correct hardware, the software is just a glob of numbers.

Without the software, the hardware is just a collection of chips that do nothing on their own.

And modern electronics can be field programmed to change their function. Look at CPLDs and FPGAs. The are generic devices that can implement innumerable hardware functions. Anything from an few AND gates to a micro-controller.

Granted, I'm bit biased in this case. I think the TiVo patents should have been invalidated as they were not novel. I've been doing what the "time-warp" patent describes with data streams since 1992, when I first used Unix, and it was old then. I use it everyday, just not with MPEG-2 data.


----------



## Ergan's Toupe

jacmyoung said:


> TiVo is now trying to use this PID filtering, and this one only, to prove that the DISH sat DVRs still infringe.


Wrong. Look again.


----------



## Curtis52

scooper said:


> Physical data source - the outputs of the tuners (or the output of the MPEG encoder, in the case of NTSC A/V) - i.e. the A/V streams. The rest follows naturally.


An output can't do analysis or temporary storage or anything else so it can't be the physical data source described. An output is passive. The input device is an antenna or cable.


----------



## jacmyoung

Curtis52 said:


> Those devices would only infringe if they do all the steps outlined in TiVo's patent not just anaysis.


But the problem is TiVo is arguing on the PID filtering alone, as I said over and over. Greg pointed that out himself. All other items have been removed.

BTW, as scooper correctly pointed out, PID filtering has absolutely nothing to do with the DVR functions. Non DVR sat receivers must also use the PID filtering, it is part of the sat receiver operations, nothing to do with DVRs.

The "parsing" viewed as a valid claim under the TiVo patent, must be part of the DVR functions, remember, the order was to disable the DVR functions. If the PID filtering was part of that infringing judgment, the order would have asked all the sat receivers to be disabled period, not just the DVR functions.

Therefore, the PID filtering cannot be a part of the steps that infringe on the patent.

Or let me put it this way, even if DISH had not removed all the other infringing elements, just the index file, it would have established the doubt whether the new software still infringed or not, because as you said, all elements must exist to prove with clear and convincing evidence that infringement still exists.

DISH has removed all, not just the index file.


----------



## Ergan's Toupe

jacmyoung said:


> But the problem is TiVo is arguing on the PID filtering alone, as I said over and over.


WRONG!!  You have no idea what Tivo is arguing.


----------



## jacmyoung

STDog said:


> ...Granted, I'm bit biased in this case. I think the TiVo patents should have been invalidated as they were not novel. I've been doing what the "time-warp" patent describes with data streams since 1992, when I first used Unix, and it was old then. I use it everyday, just not with MPEG-2 data.


My guess has been that this is at least one of the arguments DISH is using in front of the Supreme Court.

Another one most likely is the injunction, as they argue the district court did not correctly apply the Supreme Court's Ebay decision.


----------



## Ergan's Toupe

jacmyoung said:


> My guess has been that this is at least one of the arguments DISH is using in front of the Supreme Court.


What part of Tivo's patents where validated don't you people understand?

Charlie already tried that BS and failed.


----------



## jacmyoung

BTW Curtis52, in reference to your "prior art" comment, let me try to clarify if not already, you are correct that an prior art must meet all the steps of the patent claim to be a valid prior art.

My point is, TiVo currently argues on one thing only, the PID filtering, as the sole art that the DISH's new software still uses, therefore still infringes. TiVo does not dispute that all other steps of the old software that infringed were removed.

So if the PID filtering is the only thing TiVo is clinged on, then one can certainly say the PID filtering is a prior art, because it composes all the steps TiVo is claiming, because it is the only step TiVo is claiming now, to prove infringement.

Had TiVo done so during the trial, it would have been thrown out in no time. Therefore TiVo will fail now, because the standard of proof is higher now than that during the trial.


----------



## jacmyoung

Ergan's Toupe;1790338 said:


> What part of Tivo's patents where validated don't you people understand?
> 
> Charlie already tried that BS and failed.


Because you do not understand, the Supreme Court can strick down the lower court decision or the jury decision of claim validity, if there are compelling reasons.


----------



## Greg Bimson

jacmyoung said:


> But the problem is TiVo is arguing on the PID filtering alone, as I said over and over. Greg pointed that out himself. All other items have been removed.


NO, they have not:


> 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.


What you have missed is that DISH/SATS' receivers do *EVERYTHING in black* in the above quote.

DISH/SATS states their DVR's no longer "analyze" (bolded red above), but do everything else. DISH/SATS also states the Broadcom DVR's are no longer "automatically flow controlled (in regular red above).

Because DISH/SATS state the 50X series no longer "analyze", they no longer infringe. That is the only claim DISH/SATS has made.

However, because the receivers still analyze, that means the 50X receivers do EVERYTHING above, and therefore still infringe.

When it comes to the Broadcom DVR's, that leaves the "automatic flow control" argument, unbolded in red. The claim construction defines the automatic flow control as "self-regulating". The outside opinion on a design-around issued by Fish and Richardson even states, "The EchoStar software . . . must keep up with the incoming data . . . .", meaning it must self regulate.

Therefore, if DISH/SATS design-around still do all of what claim 31 above states, then it still infringes.


----------



## CuriousMark

jacmyoung said:


> My point is, TiVo currently argues on one thing only, the PID filtering, as the sole art that the DISH's new software still uses, therefore still infringes. TiVo does not dispute that all other steps of the old software that infringed were removed.


TiVo argues only this one step because this is the only step that Dish argues was changed for those particular boxes. You keep saying Dish changed all the steps, but as posted above from Dish's brief, that is not true. For these particular models dish is silent on the other steps. Thus your argument is based on putting words in Dish's mouth that were not spoken.

Now do you understand why are being chastised for making things up.


----------



## Curtis52

jacmyoung said:


> My point is, TiVo currently argues on one thing only, the PID filtering, as the sole art that the DISH's new software still uses, therefore still infringes. TiVo does not dispute that all other steps of the old software that infringed were removed.


You are forgetting about automatic flow control which is the only other thing in claim 31 that Dish says they've fixed.


> Second, with respect to the Broadcom boxes (but not the 50X boxes), EchoStar argues that its modified software does not have "automatic flow control" because it "does not and
> cannot stop the flow of incoming data to the buffer." Opp. at 5. Under the Court's claim
> construction, however, the term "automatic flow control" does not demand stopping the flow of incoming data. It means only "self-regulated." Claim Construction Order at 24. EchoStar does not dispute that its data pipelines are "self-regulated." Moreover, the opinions of its outside counsel demonstrate that the data flow continues to be self-regulated. 8/24/06 opinion letter at 23 (Dckt. No. 826 Ex. 1) ("The EchoStar software . . . must keep up with the incoming data . . . .").8 Thus, even the analysis of EchoStar's own counsel demonstrates that EchoStar's alleged design-around lacks substance. These units are not more than colorably different from the Adjudicated Receivers and they continue to infringe.


----------



## Greg Bimson

jacmyoung said:


> My point is, TiVo currently argues on one thing only, the PID filtering, as the sole art that the DISH's new software still uses, therefore still infringes. TiVo does not dispute that all other steps of the old software that infringed were removed.


Wrong. DISH/SATS only states two of the steps were removed.


CuriousMark said:


> You keep saying Dish changed all the steps, but as posted above from Dish's brief, that is not true. For these particular models dish is silent on the other steps. Thus your argument is based on putting words in Dish's mouth that were not spoken.
> 
> Now do you understand why are being chastised for making things up.


So jac, if you can find where DISH/SATS states "all of the other steps of the old software that infringed were removed", I'm all ears.

DISH/SATS defense of the contempt motion is that they no longer infringe because their DVR's no longer analyze and that the Broadcom DVR's are no longer "automatically flow controlled". Because DISH/SATS claims those two steps are missing, DISH/SATS claims they no longer infringe.

Other than the two steps I just mentioned, DISH/SATS DVR's utilize *every single step in the claim*. DISH/SATS did not mention that any other steps were no longer used.


----------



## Ergan's Toupe

jacmyoung said:


> Because you do not understand, the Supreme Court can strick down the lower court decision or the jury decision of claim validity, if there are compelling reasons.


It's never going to happen. The Supreme court WILL NOT take this case. It is a giant waste of time and money.

Charlie got caught with his hand in the cookie jar. He had his trial and lost, he appealed and lost, he failed to have Tivo's patent invalidated. he lost an En Banc hearing and he will most likely lose the contempt hearing.

Do you see a pattern here? :eek2:

It's game, set and match for Tivo. Get over it already.


----------



## STDog

Curtis52 said:


> An output can't do analysis or temporary storage or anything else so it can't be the physical data source described. An output is passive. The input device is an antenna or cable.


The signal from the antenna?
No way.

TiVo's patent regards the data after the tuner which is where the AV stream is first available. In the case of multiple streams (like satellite and digital TV/Cable) then the data must be de-multiplxed to be a data source. Without the de-multiplxing you do not have a coherent data source, just a mixture of data.


----------



## CuriousMark

STDog said:


> Without the de-multiplxing you do not have a coherent data source, just a mixture of data.


Are you claiming that demultiplexing includes PID filtering? I was taught that demultiplexing happens in the RF domain, prior to detection. PID filtering happens in the digital domain after detection.


----------



## jacmyoung

Greg Bimson said:


> NO, they have not:What you have missed is that DISH/SATS' receivers do *EVERYTHING in black* in the above quote....


Not at all, even TiVo itself does not dispute DISH has removed all the elements of the old software that was used to prove meeting the steps of the claim.

TiVo is saying but the new software still uses the PID filtering, and since the PID filtering "parses" the incoming broadcastin data, it is a proof.

But no, TiVo must prove all the elements used in the old software that were used to prove meeting the steps of the claim, they must still exsit, or if modified, are all still pretty much the same. That is called prove with clear and convincing evidence.

TiVo is not saying that, TiVo admitted that the index file is gone, TiVo admitted the temporary buffer is gone, TiVo admitted that the "media switch" is gone.

But TiVo says hey they still use the PID filtering, something that was never used during the trial to prove infirngement. Remember, in meeting the "parse" limitation, it was the index file, not the PID filtering, that was used to prove infringement.

TiVo suddenly decides since they could not find anything else because DISH had removed all of them, let's try the PID filtering thing, and use that alone to prove infringement.

Not going to work!


----------



## jacmyoung

STDog said:


> The signal from the antenna?
> No way.
> 
> TiVo's patent regards the data after the tuner which is where the AV stream is first available. In the case of multiple streams (like satellite and digital TV/Cable) then the data must be de-multiplxed to be a data source. Without the de-multiplxing you do not have a coherent data source, just a mixture of data.


Which is precisely why the data indexing, not the PID filtering, was used to meet the patent claims during the trial.

The PID filtering is outside of the TiVo's patent claim constructions. The parsing of the data in TiVo's claim must be usable A/V data, which the indexing seeks to separate.

The raw data from the satellite is "parsed" by the PID filtering, for an entirely different reason, so the sat reveiver tuners can even begin to receive the correct A/V streams.

The signals from the satellites are not A/V streams at all. They need the PID filtering to be converted to usable A/V streams.

Again the logic is simple, if TiVo may prevail on the PID thing alone, all sat receivers may be found infringing. Not going to happen.


----------



## Greg Bimson

STDog said:


> TiVo's patent regards the data after the tuner which is where the AV stream is first available.





> 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;





> 61 - An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 
> a physical data source, *wherein said physical data source accepts broadcast data from an input device*, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;


Looks to me that the Time Warp patent does regard the broadcast data upon reception.


----------



## Curtis52

STDog said:


> The signal from the antenna?
> No way.
> 
> TiVo's patent regards the data after the tuner which is where the AV stream is first available.


TiVo's patent doesn't mention that the process starts *after* the broadcast data has already been partially processed. There is no reason to assume that.


----------



## Greg Bimson

> Not at all, even TiVo itself does not dispute DISH has removed all the elements of the old software that was used to prove meeting the steps of the claim.


*When did DISH/SATS say they removed all of the elements?*

Source, please.

Because according to DISH/SATS in their response in opposition to the contempt motion, they only removed one element on the 50X and two elements in the Broadcom DVR's.


----------



## Greg Bimson

jacmyoung said:


> But TiVo says hey they still use the PID filtering, something that was never used during the trial to prove infirngement. Remember, in meeting the "parse" limitation, it was the index file, not the PID filtering, that was used to prove infringement.


Right. Yet it is in the court transcript; an admission by a DISH/SATS witness that PID filtering met the analysis step in the claim.


----------



## STDog

CuriousMark said:


> Are you claiming that demultiplexing includes PID filtering? I was taught that demultiplexing happens in the RF domain, prior to detection. PID filtering happens in the digital domain after detection.


De-multiplexing meaning separation of the channels in broadcast frequency.

First the tuner selects a given frequency from the full range received at the LNB. That's done with analog mixing. Then the digital data is recovered from the analog signal (like a modem). That is a multiplexed stream, of a variable number of channels. It's not time multiplexed, so you can have different data rated for different channels, and even on the same channel at different times, instead there is an ID on each packet of data, saying what channel it belongs to, and I think a sequence ID so the packet can be put in the correct order (May be in the underlying MPEG data through).

The internet works like that too, so data packets for different data streams can all pass on the same wire.


----------



## jacmyoung

Greg Bimson said:


> *When did DISH/SATS say they removed all of the elements?*
> 
> Source, please.
> 
> Because according to DISH/SATS in their response in opposition to the contempt motion, they only removed one element on the 50X and two elements in the Broadcom DVR's.


No they removed all elements that were used during the trial to prove infringement, that is why TiVo can only say hey they still use the PID filtering, because if TiVo knew there were other elements that DISH did not remove, don't you think TiVo would named them too?


----------



## Curtis52

jacmyoung said:


> No they removed all elements that were used during the trial to prove infringement, that is why TiVo can only say hey they still use the PID filtering, because if TiVo knew there were other elements that DISH did not remove, don't you think TiVo would named them too?





> EchoStar's "technical" arguments are aimed at creating confusion and delay, obscuring the lack of any substantive product change. Most of the arguments concern matters completely unrelated to claims 31 and 61, which are the claims that EchoStar seeks to relitigate.


The parsing and the flow control are the only things Dish mentions that relate to claims 31 and 61.


----------



## Greg Bimson

jacmyoung said:


> No they removed all elements that were used during the trial to prove infringement, that is why TiVo can only say hey they still use the PID filtering, because if TiVo knew there were other elements that DISH did not remove, don't you think TiVo would named them too?


No.

And I'd still like that source, as I don't see where DISH/SATS claims to have "removed all elements that were used during the trial to prove infringement."


----------



## jacmyoung

Curtis52 said:


> The parsing and the flow control are the only things Dish mentions that relate to claims 31 and 61.


But the reason that index file was found to have met the steps of the claims, is precisely as TiVo said during the trial, that index table, was the "core invention" that the DISH DVRs used.

By the use of that "index table" DISH's DVRs were found to follow all the steps of the TiVo patent claims, as described, not just the "parsing" which is only one of the many steps. Becasue the use of the index table comprised all the steps in the patent. It is the core, and by using it, all other steps must be used.

Now DISH said that core invention, as TiVo insisted, the index table, is removed, after the removal, the new DVR functions must rely on a series of steps that are completely different than those described in TiVo's patent.

But TiVo suddenly found this PID filter, and said look it still parses data, but you know and I knew this PID filter does no additional steps described in TiVo's patent, because a PID filter is not designed to do DVR at all.

So again TiVo is saying hey you still parse the data, and that is enough.

No Curtis52, you said yourself parsing alone is not enough, you must prove all the other steps are still performed by the new software, and we know the PID filter cannot possibly do any of the other steps.

By removing the core index table, DISH's new software no longer does any of the steps, they described the actual new steps the new software does, different from the steps described in TiVo's patent.

But did TiVo try to prove those new steps still are the same as the old steps? No, TiVo knew they were different steps, so instead they fond this PID filter, and try to prove only a single step.

Not going to happen!


----------



## CuriousMark

STDog said:


> De-multiplexing meaning separation of the channels in broadcast frequency.
> 
> First the tuner selects a given frequency from the full range received at the LNB. That's done with analog mixing. Then the digital data is recovered from the analog signal (like a modem). That is a multiplexed stream, of a variable number of channels. It's not time multiplexed, so you can have different data rated for different channels, and even on the same channel at different times, instead there is an ID on each packet of data, saying what channel it belongs to, and I think a sequence ID so the packet can be put in the correct order (May be in the underlying MPEG data through).
> 
> The internet works like that too, so data packets for different data streams can all pass on the same wire.


So you are talking about digitally demultiplexing data from a large digital data stream after detection in the receiver itself. That certainly sounds like analysis that could be considered to be covered by the patent to me.


----------



## Greg Bimson

jacmyoung said:


> But the reason that index file was found to have met the steps of the claims, is precisely as TiVo said during the trial, that index table, was the "core invention" that the DISH DVRs used.


Source, please?


jacmyoung said:


> By the use of that "index table" DISH's DVRs were found to follow all the steps of the TiVo patent claims, as described, not just the "parsing" which is only one of the many steps. Becasue the use of the index table comprised all the steps in the patent. It is the core, and by using it, all other steps must be used.


Source, please?


jacmyoung said:


> Now DISH said that core invention, as TiVo insisted, the index table, is removed, after the removal, the new DVR functions must rely on a series steps that are completely different than those described in TiVo's patent.


Source, please?

In the ONLY DOCUMENT filed by DISH/SATS in opposition to the contempt motion, it is stated that the design-around is to remove "parsing" and "automatic flow control" limitations within the claims. Just because a specifc function may have been eliminated does not mean the claims were.


----------



## Curtis52

The transcript is out (not on PACE).


----------



## James Long

scooper said:


> So, James, if you were Echostar / counsel, when would YOU have notified the court about the work around ? Personally, I would have done just the way they did - in the briefs for 5/30 meeting. That way, I get the workaround deployed and demonstrated that it works, before the injunction comes into effect. Also, this would prevent Tivo from getting an injunction against me deploying my legally permissable modification.


I would have notified the court after the receivers were on the new software in 2007 ... certainly before the SEC filing in 2008.

DISH was in the process of developing the software back in 2006 and receivers had the software in early 2007. They had proof that it worked before the stay was lifted.

That would have allowed Tivo to start the process of claiming that the new software was only colorably different, and perhaps discovery could have been handled in advance of the appeals court ruling. But I believe it would be more likely that Judge Folsom would have put off any action pending the ruling of the appeals court. Pretty much the same path we are on today except the court remains informed.


----------



## Curtis52

Dish 9-4 about claim that Dish asked that they be allowed to revise software but were turned down:


> THE ARGUMENT THAT WAS MADE WAS AT THE TIME TIVO WAS
> ASKING YOU TO ORDER US TO RECALL BOXES THAT WERE AT
> DISTRIBUTORS THAT HAD NOT YET BEEN INSTALLED. AND IN THAT
> CONTEXT WE SAID IF WE CAN INSTALL THOSE BOXES WITH NEW
> NONINFRINGING SOFTWARE, WE SHOULDN'T HAVE TO RECALL THEM
> BECAUSE THEY HAVE OTHER USES.
> AND THAT WAS THE CONTEXT THAT WE MADE THE ARGUMENT, AND
> IN AN ORAL ARGUMENT TIVO CONCEDED THAT POINT. AND YOUR
> INJUNCTION DOES NOT HAVE THE LANGUAGE THAT THEY WERE ASKED FOR
> AT THE TIME ABOUT RECALLING THE BOXES BECAUSE EVERYBODY
> RECOGNIZED THAT THE BOX ITSELF, IF IT COULD BE MODIFIED WITH
> NONINFRINGING SOFTWARE, WOULD NOT VIOLATE EITHER THE LAW OR
> YOUR INJUNCTION.


----------



## Curtis52

Dish 9-4:


> THE LAST THING THAT I WANT TO ADDRESS IS THIS ARGUMENT
> ABOUT THE WALKER AND THE, YOU KNOW, YOU HAVE TO CHALLENGE THE
> LANGUAGE OF THE INJUNCTION. THAT'S A CIRCULAR, NONSENSICAL
> ARGUMENT. IN ORDER TO GET THERE, YOU HAVE TO READ YOUR
> ORIGINAL INJUNCTION AS HAVING ORDERED US TO TAKE ACTION
> AGAINST NONINFRINGING PRODUCTS. AND AS YOU KNOW FROM PAICE,
> AS YOU KNOW DIRECTLY FROM THE FEDERAL CIRCUIT, DISTRICT COURTS
> CANNOT ENJOIN NONINFRINGING PRODUCTS. SO THERE WAS NOTHING
> ERRONEOUS ABOUT YOUR ORDER. YOUR ORDER WAS EXACTLY RIGHT. IT
> WAS WRITTEN EXACTLY AS THE FEDERAL CIRCUIT TELLS YOU TO DO IT
> TO ENJOIN THE USE OR THE CONTINUED USE OF INFRINGING PRODUCTS.
> BUT WHAT KSM TEACHES IS YOU CAN MODIFY THOSE PRODUCTS SUCH AS
> THEY ARE NO LONGER INFRINGING, YOU ARE ENTITLED -- UNLESS IT'S
> A SHAM, YOU ARE ENTITLED TO A TRIAL ON THE QUESTION OF WHETHER
> THESE NEW PRODUCTS INFRINGE.


----------



## jacmyoung

Greg Bimson said:


> Source, please?Source, please?Source, please?
> 
> In the ONLY DOCUMENT filed by DISH/SATS in opposition to the contempt motion, it is stated that the design-around is to remove "parsing" and "automatic flow control" limitations within the claims. Just because a specifc function may have been eliminated does not mean the claims were.


Because both you and TiVo said that index file was the only thing DISH removed. And according to the court papers, as far as the 50x DVRs are concerned that index table was the only thing, the core invention as TiVo stated, to find infringement. Because it was a "core invention", by the use of it, the old software in the 501 DVRs had to follow all the steps of the patent claims.

I wasn't clear myself when I said all the elements, I should have said all the steps. The DISH's new software does not use that core invention (index table) anymore, as a result, the steps are totally different, if you have not yet read them, they are in the DISH 6/30 filing I believe. Or simply find DISH's new software patent application, it is somewhere on this board, I recall it described many steps too.

Again did TiVo try to prove those new steps still fall into the TiVo patented steps? No, TiVo couldn't do it, because the two sets of steps are no longer the same. So TiVo tried a trick play themselves, fond this PID filtering thing, and only was able to prove a single step BTW.

If this is all TiVo has, this PID thing, then after a no contempt, I suggest TiVo forget about a new lawsuit, save the money and time.


----------



## James Long

Courtesy of Mainer_ayah's site at http://southernme.com/DAVY_v_GOLIATH/
(Available there courtesy of "drumrboy" at Investor Village.)

Full Transcript


----------



## jacmyoung

Curtis52 said:


> Dish 9-4:


I have obviously mistaken DISH lawyer's "sham" as "a shame", my bad


----------



## dgordo

Curtis52 said:


> The transcript is out (not on PACE).


Mainer has it up on his site, Thanks Mainer!

http://www.southernme.com/DAVY_v_GOLIATH/Tivo v Echostar/TiVo v Echostar 9-4-08.pdf


----------



## Greg Bimson

> THE COURT: I NOTICE -- BUT WHILE WE ARE ON THAT
> SUBJECT -- I AM NOT QUITE READY TO LEAVE IT. I NOTICE IN YOUR
> BRIEFING YOU SAID, WELL, WE ALERTED. THEY VERY WELL COULD
> HAVE READ THE SEC FILINGS, I THINK THAT WAS YOUR CLIENT'S
> POSITION IN THE BRIEFING, TO FIND OUT ABOUT THE DESIGN AROUND,
> CORRECT?
> MR. MCELHINNY: YES, YOUR HONOR.
> THE COURT: DO YOU EXPECT THE COURT TO READ THEM?
> MR. MCELHINNY: NO, YOUR HONOR.
> THE COURT: OKAY. YOU MAY CONTINUE.


Think informing the court about receivers in the hands of users already adjudged to infringe is important?


----------



## Curtis52

Pretty tricky damages estimate by TiVo. $168 million damages during stay whether Dish is in contempt or not (categories 1 and 2). Category 2 is for devices that would have been disabled if not for the stay:


> AND THAT SECOND CATEGORY IS JUST THESE SAME ADJUDICATED
> DVRS BUT THAT HAD THIS SOFTWARE DOWNLOAD DOWNLOADED TO THEM
> AFTERWARDS THROUGH THE SATELLITE. AND THE REASON I WOULD SAY
> THAT THOSE DAMAGES WOULD STILL BE APPROPRIATE IS JUST A VERY
> SIMPLE BUT-FOR ANALYSIS. *BUT FOR THE STAY, THESE DVRS
> WOULDN'T HAVE BEEN OUT THERE IN THE FIELD. THEY WOULDN'T HAVE
> BEEN FUNCTIONING.* NEW ONES WOULDN'T HAVE BEEN PLACED, AND SO
> THERE WOULD BE NOTHING FOR THIS DOWNLOAD TO DOWNLOAD TO.
> SO IF YOU TAKE A SIMPLE BUT-FOR ANALYSIS, BUT FOR THE
> STAY, NONE OF THESE DVRS WOULD BE FUNCTIONING. THERE WOULD BE
> NOTHING THERE FOR REDESIGN SOFTWARE AND THEREFORE, YES, ON
> THESE UNITS WE WOULD SAY REGARDLESS OF THE COURT'S RULING ON
> THE CONTEMPT, THESE DAMAGES WOULD STILL BE APPROPRIATE.


----------



## dgordo

The Court: Well, I Think –- And I Am Not Saying I Am
Going To Find You In Contempt. I Think It’s Highly Unlikely.
If I Think You Are In Contempt Of My Order, I Am Going To Stay
It. Maybe The Federal Circuit Would, But I Don’t Think You
Can Look To Me For Relief In That Regard.


----------



## Greg Bimson

jacmyoung said:


> Because both you and TiVo said that index file was the only thing DISH removed. And according to the court papers, as far as the 50x DVRs are concerned that index table was the only thing, the core invention as TiVo stated, to find infringement. Because it was a "core invention", by the use of it, the old software in the 501 DVRs had to follow all the steps of the patent claims.


Where does this come from?

Better yet, where in the court papers "as far as the 50x DVRs are concerned that index table was the only thing, the core invention as TiVo stated, to find infringement."

I didn't know jurors signed their verdict sheets with notations as to why they found infringement.


----------



## scooper

I thought this was a great understatement - 


"THE COURT: I AM QUITE PLEASED, IN VIEW OF THE
HISTORY OF THIS CASE, THAT WE ARE SO CLOSE BETWEEN 223 AND 16
MILLION. IT’S GREAT PROGRESS."


----------



## STDog

scooper said:


> "THE COURT: I AM QUITE PLEASED, IN VIEW OF THE
> HISTORY OF THIS CASE, THAT WE ARE SO CLOSE BETWEEN 223 AND 16
> MILLION. IT'S GREAT PROGRESS."


I loved that.

They are $207 million, or 1300% apart (207/16), and that's *great* progress.


----------



## scooper

My non-expert opinion thinks the end result will be somewhere in between the two extremes.


----------



## STDog

Curtis52 said:


> Category 2 is for devices that would have been disabled if not for the stay:


So to say that if DISH is not in contempt, yet still owes damages for them after the firmware change boggles me. But-for argument my rear.

If the infringing devices had been disabled, they would have just had the DVR function turned off. They would still function as satellite receivers, and thus still in the field and able to get future firmware once the non-infringing implementation was rolled out.


----------



## Mainer_ayah

dgordo said:


> Mainer has it up on his site, Thanks Mainer!
> 
> http://www.southernme.com/DAVY_v_GOLIATH/Tivo v Echostar/TiVo v Echostar 9-4-08.pdf


Drumrboy from InvestorVillage decided he wanted to make a gift of this transcript to my page. I'm just hosting this one thanks should go to Drumrboy!


----------



## STDog

So, i don't remember the details from earlier in the thread, but it looks like the judge did cut off TiVo when Mr. Baxter was to discuss the case Judge Ward (is that the Birmingham case?)

When Baxter does address the court he brings up "that NI case" and that it isn't applicable.

(page 21 line 20 through page 24 line 11)

I don't see any real discussion if Walker v. Birmingham, only a passing mention on page 11, line 5.


----------



## jacmyoung

Several points:

1)	The design around was talked about extensively on 9/4, even though “it was not on the court agenda.”
2)	The Dr. king’s case was pretty much dismissed, because the judge said, like I guessed, he could find DISH not in violation on the face of the injunction, that makes two different cases.
3)	The judge clearly had a lot of trouble about Mr. Chu’s dismissal of the KSM case.
4)	The judge thought TiVo disputed DISH’s new design around evidence, but after the DISH lawyer said, “it is interesting…”, the judge appeared to realize TiVo actually did not dispute the evidence rather accepted it.
5)	The judge clearly also had a lot of trouble with TiVo’s argument that even if DISH’s design around makes them in compliance, TiVo still should be paid from 01/06 to 04/08.

For item 1), it is clear judge understands the importance of the design around, and not only that, the “extent of the design around”. Because the design around is the key in any contempt proceedings, and the “extent of the design around” is how the judge makes a decision if the difference is only colorable or not. If yes, a contempt, of not, no contempt.

For item 2), as said the judge told Mr. Chu, violation on face of the injunction had not been determined.

For item 3), TiVo has no chance. To say in a contempt proceeding on patent infringement where design around is a fact, that KSM is irrelevant is just laughable. KSM is the Bible of which all contempt proceedings on injunction of patent infringement have to follow. All the contempt of injunction of patent infringement cases I read, all of them cited KSM. For Mr. Chu to say KSM is not, no wonder the judge kept asking how.

For item 4), not surprisingly DISH pointed out to the judge TiVo did not question DISH’s design around evidence, to which the judge realized he might be wrong to think TiVo disagreed.

For item 5), Curtis52 pointed it out already.


----------



## Greg Bimson

jacmyoung said:


> 1) The design around was talked about extensively on 9/4, even though "it was not on the court agenda."


The fact there was a design-around was discussed, but there was no evaluation of infringement nor colorable difference. That is much different than your argument, which was that the "extent of the design-around" must be evaluated. As a matter of fact, from the transcript:


> MR. MCELHINNY: YOU ALLOWED SOME DISCOVERY. THEY
> WANT, AS YOU WOULD NOT BE SURPRISED, A LOT MORE AND THERE ARE
> DISPUTES THAT ARE PENDING THE RULING OF TODAY, BECAUSE IF YOUR
> HONOR DOES NOT HOLD US IN SOME SORT OF SUMMARY CONTEMPT TODAY,
> THEY THEN WANT TO ROLL IT OVER INTO ANOTHER CONTEMPT HEARING
> WITH DISCOVERY AND EXPERT OPINIONS. AND WE THINK THAT YOUR
> HONOR NOW HAS A SUFFICIENT RECORD TO SAY THAT THE DIFFERENCES
> ARE SUBSTANTIAL ENOUGH THAT IT'S NOT COLORABLE.
> THE COURT: WHAT IS IN THE RECORD THAT WOULD ALLOW ME
> TO MAKE THAT DECISION?
> MR. MCELHINNY: YOU HAVE THREE THINGS IN THE -- WELL,
> TWO AT LARGE. YOU HAVE THE OPINIONS OF COUNSEL, WHICH ARE
> SUBSTANTIAL, AND YOU HAVE THE DECLARATION OF MR. MINNICK WHICH
> LAYS OUT THE NATURE OF THE DESIGNS.
> THE COURT: I WOULD BE SURPRISED IN THIS CASE IF THE
> OTHER SIDE DOESN'T DISAGREE.
> MR. MCELHINNY: WELL, IT'S INTERESTING. I MEAN --
> THE COURT: I MEAN, IF THEY -- MAYBE THEY WON'T. BUT
> --
> MR. MCELHINNY: CLEARLY THEY DISAGREE, BUT IF YOU
> LOOK AT THEIR PAPERS, IN THEIR REPLY BRIEF AND IN FOOTNOTES
> THEY HAVE TOLD YOU THAT THEY THINK THAT THERE IS -- THAT THEY
> ARE GOING TO DISAGREE. BUT IN THIS BRIEFING THEY DID NOT
> SUBMIT A SINGLE DECLARATION. THEY DID NOT SUBMIT A SINGLE
> PIECE OF EVIDENCE THAT WOULD SUGGEST THAT THERE IS ANY REASON
> TO GO FORWARD FURTHER.


Except there was no need to submit a declaration when TiVo already refuted the design-around as still being an infringement.


jacmyoung said:


> 2) The Dr. king's case was pretty much dismissed, because the judge said, like I guessed, he could find DISH not in violation on the face of the injunction, that makes two different cases.


I don't see where Walker v. Birmingham was dismissed. Perhaps the same wishful thinking that DISH/SATS provided evidence they no longer fulfill any steps in the infringing claims.


jacmyoung said:


> For item 3), TiVo has no chance. To say in a contempt proceeding on patent infringement where design around is a fact, that KSM is irrelevant is just laughable. KSM is the Bible of which all contempt proceedings on injunction of patent infringement have to follow. All the contempt of injunction of patent infringement cases I read, all of them cited KSM.


Yet all of the contempt of injunction of patent infringement cases you read (and those which you have cited), all of them dealt with a patentee accusing the infringer of sales of products that were never addressed in the court before as infringements.


jacmyoung said:


> 4) The judge thought TiVo disputed DISH's new design around evidence, but after the DISH lawyer said, "it is interesting&#8230;", the judge appeared to realize TiVo actually did not dispute the evidence rather accepted it.





> THE COURT: I WOULD LIKE TO ASK YOU, DO YOU AGREE
> THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT
> WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND, DO YOU
> CONCEDE THAT THAT'S NOT AN ISSUE, THAT IT SHOULD BE A DIRECT
> ACTION, OR IS THAT STILL A SUBJECT FOR THE COURT TO DETERMINE
> IF I CAN GO FORWARD ON A CONTEMPT ACTION TRYING TO DETERMINE
> IF THERE IS AN INFRINGEMENT, AND IF THERE IS THE APPROPRIATE
> DISTINCTION THAT WOULD ALLOW ME TO DO SO UNDER THE CASE LAW?
> ARE YOU ESSENTIALLY CONCEDING, AS MR. MCELHINNY SAYS, THAT
> WITH THE OPINION OF COUNSEL THAT HAS BEEN PROVIDED THAT
> PERHAPS THIS IS NOT AN ISSUE? IT'S A RATHER LONG QUESTION.
> MR. CHU: WE DISAGREE WITH THE POSITION TAKEN BY
> ECHOSTAR.


So much for no dispute by TiVo.


----------



## jacmyoung

Another judge's comment also seem to give my prediction a little nudge ahead.

When the DISH lawyer asked if he thought a "new action" (new lawsuit) would be in his court or in DE, Judge Folsom said it was for the DE court to decide, not me.

Clearly he was not eager to help TiVo by hinting he'd like to take that new case if TiVo should file with him.


----------



## jacmyoung

Greg Bimson said:


> ...So much for no dispute by TiVo.


But you did not read further what he said. I will try to quote it for you and get back to you.


----------



## Greg Bimson

jacmyoung said:


> When the DISH lawyer asked if he thought a "new action" (new lawsuit) would be in his court or in DE, Judge Folsom said it was for the DE court to decide, not me.





> AND THAT IS WHY WE CITED TO YOUR HONOR
> JUDGE WARD'S ORDER IN THE MATHWORKS CASE WHERE HE HAD A
> PRELIMINARY HEARING MUCH LIKE THIS AND HE SAID BASED ON THAT
> RECORD AND JUST LOOKING AT IT, HE WAS CLEAR THAT CONTEMPT WAS
> NOT THE WAY TO PROCEED AND THAT THE WAY TO PROCEED WAS A
> DECLARATORY JUDGMENT ACTION, WHICH IN FAIRNESS TIVO CAN STILL
> FILE. I MEAN, IF YOUR HONOR THINKS WE ARE IN THE WRONG COURT,
> IF THE DELAWARE COURT THINKS WE ARE IN THE WRONG COURT --
> THE COURT: THAT'S NOT MY DECISION. I THINK THAT'S
> THE DELAWARE'S COURT TO MAKE THAT DECISION.


That is the context; an evaluation must occur for colorable difference when accusing a device never before the court of infringement.


Greg Bimson said:


> ...So much for no dispute by TiVo.





jacmyoung said:


> But you did not read further what he said. I will try to quote it for you and get back to you.


The dispute is in the motions. TiVo counsel Chu even says, "We disagree with the position taken by EchoStar."

What more do you want? It is spelled out right there.


----------



## jacmyoung

jacmyoung said:


> But you did not read further what he said. I will try to quote it for you and get back to you.


Well I couldn't copy and paste so you will have to read for yourself.

But in replying, Mr. Chu said in 5/08 the judge established two hearings, one is on 9/4 whether DISH may be found in contempt without going into the new design around.

Keep in mind this was in response to the judge saying: "well, then it's not violation on its face". Remember to find no violation on its face, the judge must consider the design around, he cannot find no violation on its face without looking at the design around. No design around means violation on its face, period.

Now in that context, Mr. Chu said in such case, the judge agreed maybe another hearing that deals with "new products", meaning nothing to do with those DVRs on the list anymore.

I hope that explains it. Even TiVo admitted if no violation on its face, then:

1) The Dr. King's case will not apply anymore.
2) The issue of DVRs on the list will be over.

Now as far as the "new products", how much do you want to bet if after a no contempt, and TiVo comes back with that second motion, it will be denied? Because if even the DVRs on the list may not be in violation, it will be moot point to discuss any new DVRs.


----------



## jacmyoung

Greg Bimson said:


> That is the context; an evaluation must occur for colorable difference when accusing a device never before the court of infringement.The dispute is in the motions. TiVo counsel Chu even says, "We disagree with the position taken by EchoStar."
> 
> What more do you want? It is spelled out right there.


The dispute is not whether the evidence is good or not, rather that DISH says the evidence proves more than colorable difference, TiVo says the evidence proves mere colorable difference.

The evidence is not in dispute, the judge thought TiVo did not agree to the evidence itself, but after the DISH lawyer said, "it's interesting...", the judge said: "I mean, if they, Maybe they won't..." He just realized TiVo might not have questioned the design around evidence.

A big mistake by TiVo.


----------



## dgordo

jacmyoung said:


> Another judge's comment also seem to give my prediction a little nudge ahead.
> 
> When the DISH lawyer asked if he thought a "new action" (new lawsuit) would be in his court or in DE, Judge Folsom said it was for the DE court to decide, not me.
> 
> Clearly he was not eager to help TiVo by hinting he'd like to take that new case if TiVo should file with him.


Thats not what he said. He said it was for Delaware to decide if that was the proper venue for the declaratory judgment to proceed, not him.

"MR. MCELHINNY: YOU ALLOWED SOME DISCOVERY. THEY
WANT, AS YOU WOULD NOT BE SURPRISED, A LOT MORE AND THERE ARE
DISPUTES THAT ARE PENDING THE RULING OF TODAY, BECAUSE IF YOUR
HONOR DOES NOT HOLD US IN SOME SORT OF SUMMARY CONTEMPT TODAY,
THEY THEN WANT TO ROLL IT OVER INTO ANOTHER CONTEMPT HEARING
WITH DISCOVERY AND EXPERT OPINIONS. AND WE THINK THAT YOUR
HONOR NOW HAS A SUFFICIENT RECORD TO SAY THAT THE DIFFERENCES
ARE SUBSTANTIAL ENOUGH THAT IT'S NOT COLORABLE.
THE COURT: WHAT IS IN THE RECORD THAT WOULD ALLOW ME
TO MAKE THAT DECISION?
MR. MCELHINNY: YOU HAVE THREE THINGS IN THE -- WELL,
TWO AT LARGE. YOU HAVE THE OPINIONS OF COUNSEL, WHICH ARE
SUBSTANTIAL, AND YOU HAVE THE DECLARATION OF MR. MINNICK WHICH
LAYS OUT THE NATURE OF THE DESIGNS.
THE COURT: I WOULD BE SURPRISED IN THIS CASE IF THE
OTHER SIDE DOESN'T DISAGREE.
MR. MCELHINNY: WELL, IT'S INTERESTING. I MEAN --
THE COURT: I MEAN, IF THEY -- MAYBE THEY WON'T. BUT
--
MR. MCELHINNY: CLEARLY THEY DISAGREE, BUT IF YOU
LOOK AT THEIR PAPERS, IN THEIR REPLY BRIEF AND IN FOOTNOTES THEY HAVE TOLD YOU THAT THEY THINK THAT THERE IS -- THAT THEY
ARE GOING TO DISAGREE. BUT IN THIS BRIEFING THEY DID NOT
SUBMIT A SINGLE DECLARATION. THEY DID NOT SUBMIT A SINGLE
PIECE OF EVIDENCE THAT WOULD SUGGEST THAT THERE IS ANY REASON
TO GO FORWARD FURTHER. AND THAT IS WHY WE CITED TO YOUR HONOR
JUDGE WARD'S ORDER IN THE MATHWORKS CASE WHERE HE HAD A
PRELIMINARY HEARING MUCH LIKE THIS AND HE SAID BASED ON THAT
RECORD AND JUST LOOKING AT IT, HE WAS CLEAR THAT CONTEMPT WAS
NOT THE WAY TO PROCEED AND THAT THE WAY TO PROCEED WAS A
DECLARATORY JUDGMENT ACTION, WHICH IN FAIRNESS TIVO CAN STILL
FILE. I MEAN, IF YOUR HONOR THINKS WE ARE IN THE WRONG COURT,
IF THE DELAWARE COURT THINKS WE ARE IN THE WRONG COURT --
THE COURT: THAT'S NOT MY DECISION. I THINK THAT'S
THE DELAWARE'S COURT TO MAKE THAT DECISION."


----------



## jacmyoung

“The court: Because it’s my understanding, my reading of that, basically the district judge found that the defendant was in contempt from a plain reading of the injunction (prima facie injunction), and the Federal Circuit said, nope, you‘ve got to determine whether the design around in fact infringed, I think in that case, the ‘219. So why is that argument inappropriate for the facts of this case?”

After that Mr. Chu had clear difficulty responding, finally he got to the point of what you keep saying, not product already sold, but a new product. Guess what the judge’s response?

“Well, can you cite me to a Federal Circuit case that stnads for the proposition that you can find contempt on the design around without considering whether the design around infringes or not?”

Here clearly the judge had trouble accepting Mr. Chu’s new prlducts only theory, and asked for another case law for proof, to which Mr. Chu cited the Carborundum case, and the judge pretty much joked about it: “that would be your closest case for that proposition, you think?”

To which Mr. Chu admitted, and said the “C” case proved the infringer needs to ask the court to modify the injunction first. But they don’t need to modify the injunction, DISH said they are in full compliance of the injunction.

The problem with citing Dr. King’s case is, it actually forces the judge to want to find no violation on face of the injunction because if he does not, he will then really have to use the Dr. King’s case to defend his ruling, something not many judges want to touch.

Would you want to elevate DISH to the point that DISH now is like Dr. King, who was seeking justice by intentionally violating an injunction in order to prove the law was unconstitutional?


----------



## scooper

James Long said:


> I would have notified the court after the receivers were on the new software in 2007 ... certainly before the SEC filing in 2008.
> 
> DISH was in the process of developing the software back in 2006 and receivers had the software in early 2007. They had proof that it worked before the stay was lifted.
> 
> That would have allowed Tivo to start the process of claiming that the new software was only colorably different, and perhaps discovery could have been handled in advance of the appeals court ruling. But I believe it would be more likely that Judge Folsom would have put off any action pending the ruling of the appeals court. Pretty much the same path we are on today except the court remains informed.


Ok - so doing it the way you just described does sound reasonable. Notify the court 
A - After the patent application was in
B - AFTER it was already deployed, but
C - Sooner than it was done.

I was going with mine because I wasn't aware of the exact timelines, but with this set - yeah - the court should have been notified at least a year ago from today, if not sooner (like April 2007)


----------



## jacmyoung

dgordo said:


> Thats not what he said. He said it was for Delaware to decide if that was the proper venue for the declaratory judgment to proceed, not him...


This "declaratory judgment" DISH was referring to as the "new action" was in the same context of a new suit, or an independent proceeding to find if the new software is infringing or not, and the judge said it was up to the DE court, not him.

The reason DISH used the term "declaratory judgment" was because the case law they cited in, Judge Ward used that term to describe a new independenet proceeding to rule on the new design around infringement issue, the same as what the DE court will have to decide, whether to accept it and make a ruling on, Judge Folsom said that was up to DE not him.


----------



## Curtis52

Dish brought up the subject of whether the Delaware case was in the wrong court. The judge said that wasn't his decision to make. Nothing more complicated to it than that. A simple comment.


----------



## Greg Bimson

jacmyoung said:


> To which Mr. Chu admitted, and said the "C" case proved the infringer needs to ask the court to modify the injunction first. But they don't need to modify the injunction, DISH said they are in full compliance of the injunction.


And after 7,500 posts, many of which accuse me of this...

Why are you taking DISH/SATS word they are in full compliance with the injunction?


----------



## spear61

STDog said:


> I loved that.
> 
> They are $207 million, or 1300% apart (207/16), and that's *great* progress.


I can remember lawyers saying "never give them a number". They start out; " Is it 500 million". You say " No, it can't be that much". So then they say " You think 10 thousand would cover it". You say " No, of course it's more than that". You have just sprung the trap and set the boundries. Then they just keep grinding into the real number.


----------



## jacmyoung

Curtis52 said:


> Dish brought up the subject of whether the Delaware case was in the wrong court. The judge said that wasn't his decision to make. Nothing more complicated to it than that. A simple comment.


One must read the exchanges in the context of each other, this conversation started with DISH citing Judge Ward's case in which he stated in a priliminary hearing that a contempt would not be issued based on the preliminary evidence, and if the patentee wanted to continue they needed to get a "declaratory judgment" (a "new action" as DISH called it) on whether the new design around was infringing or not.

Following that case law citing, DISH said they wonder which court was the correct court for such "new action" in this case, the judge's response was it was up to the DE court, not me, meaning the DE court must decide if they want to accept or dismiss the new action, which is pending right now.


----------



## nobody99

jacmyoung said:


> One must read the exchanges in the context of each other, this conversation started with DISH citing Judge Ward's case in which he stated in a priliminary hearing that a contempt would not be issued based on the preliminary evidence, and if the patentee wanted to continue they needed to get a "declaratory judgment" (a "new action" as DISH called it) on whether the new design around was infringing or not.
> 
> Following that case law citing, DISH said they wonder which court was the correct court for such "new action" in this case, the judge's response was it was up to the DE court, not me, meaning the DE court must decide if they want to accept or dismiss the new action, which is pending right now.


And it means absolutely nothing to this case. TiVo can continue to file whatever motions it chooses; Judge Folsom can completely ignore DE when he decides when to grant a hearing.

I take that back - it does mean one thing to this case: that DISH made a mistake, and Folsom called them on it.


----------



## jacmyoung

Greg Bimson said:


> And after 7,500 posts, many of which accuse me of this...
> 
> Why are you taking DISH/SATS word they are in full compliance with the injunction?


Again one needs to read in the context of the conversation.

When the judge asked: "Well, can you cite me to a Federal Circuit case that stands for the proposition that you can find contempt on the design around without considering whether the design around infringes or not?"

To which Mr. Chu cited the "C" case law, in which the court said if the infringer thought the injunction was wrong, they should have asked the court to have it modified.

But in thise case DISH did not have to because DISH has always said the injunction was correct, and they are in full compliance with the injunction.

So similar to the Dr. King's case, this "C" case cited by TiVo was not the same as this case. In the "C" case the infringer argued the injunction was wrong, but they did not contest it when they had the chance.

In this case, DISH never said the injunction was wrong, so the above case does not apply.

It has nothing to do with whether you believe DISH is correct they complied or not, it has to do with TiVo lawyers inability to cite a rellevant case law.

The only two cases they cited are both not applicable, if the judge rules DISH is in compliance with his order, as the judge had kept asking Mr. Chu what if I found no violation on the face of injunction, "what does that leave you?"

Neither of these two cases TiVo cited in response to the judge's such scenario may apply because in both these cases the courts were ruling the infringers in violation of the orders, here the judge asked TiVo assumed he found no violation, so TiVo should have cited cases where no violation on face of injunction in order to be relevant to his questions.

As DISH lawyers said, TiVo was in circular exchange with the judge.


----------



## Bidderman9

So if SCOTUS decides not to accept the case on 10/6, does that make all this a moot point? Don't you think a SCOTUS action will force a settlement?


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## jacmyoung

nobody99 said:


> And it means absolutely nothing to this case. TiVo can continue to file whatever motions it chooses; Judge Folsom can completely ignore DE when he decides when to grant a hearing.
> 
> I take that back - it does mean one thing to this case: that DISH made a mistake, and Folsom called them on it.


You don't understand, if the DE court accepts DISH's new software infringement complaint, Judge Folsom will not be able to grant TiVo's another new complaint on the new software infringement. The DE court will have the jurisdiction on such complaint already.

The point is by Judge Folsom saying, it would be up to the DE court not me, it showed that he did not care if he would be the one to again preside over a new suit on the new software infirngement complaint, if filed by TiVo.

Many of you folks earlier insisted Judge Folsom would be PO'ed had he not given the opportunity to preside over the new case because DISH might take it away from him by filing it first with the DE court.

But Judge Folsom apparently did not care that much.


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## jacmyoung

Bidderman9 said:


> So if SCOTUS decides not to accept the case on 10/6, does that make all this a moot point? Don't you think a SCOTUS action will force a settlement?


I am not too sure what you meant.

If the Supreme Court refuses to hear this case, the money in the escrow will have to be finally transferred to TiVo. Since the money is now in the escrow, it is not DISH's money anyway, it should not have much difference.

Will it help to force a settlement, sure it is possible. Anything is possible.

One prediction of mine was if no contempt, DISH and TiVo may settle very soon, because Charlie wants to keep the money in the escrow to himself, as much as he can, and TiVo wants to get a long term agreement out of Charlie, so there is this common interest to both party to settle.

But if the Supreme Court denies DISH's petition *before* Judge Folsom's no contempt ruling, Charlie may not have time to settle with TiVo to keep his money in the escrow, and in such case, there will be no incentive for DISH to settle with TiVo anymore. So TiVo can keep the money, but will not be able to get a licensing agreement out of DISH at all.

For TiVo a licensing agreement will be more imprtant than the $120 million, because if TiVo gets it with DISH, TiVo will be able to tell the world they now have landed agreements with all major providers, it will be a very positive news for TiVo.

Of course it is entirely possible Charlie is so concerned that he will not be able to keep any of the money in the escrow, to the point that he decides to settle before the Supreme Court rules. But his past behavior does not make such scenario very likely. Not imppossible though, never say never.


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## Bidderman9

jacmyoung said:


> If the Supreme Court refuses to hear this case, the money in the escrow will have to be finally transferred to TiVo. Since the money is now in the escrow, it is not DISH's money anyway, it should not have much difference.


Yes, but won't it also force E* to come up with the additional money (somewhere between 16 and 223 Mil). And I think we all know it won't be 16 Mil. I would think if it is closer to the high end, it could force a settlement knowing that that now have to pay it off verses constantly delaying it.


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## James Long

nobody99 said:


> I take that back - it does mean one thing to this case: that DISH made a mistake, and Folsom called them on it.


Judge Folsom did not appreciate not being informed of the soon to be filed action in Delaware (although informing Judge Folsom may have come across as an ultimatum - "if you don't handle this we'll find a court that will"). But Judge Folsom did not charactarize it as a mistake and he sounded quite content to let Delaware handle the issue.THE COURT: WHAT IS THE STATUS OF THE DELAWARE ACTION?

MR. MCELHINNY (representing DISH): THE DELAWARE ACTION IS PENDING. IT HAS A MOTION TO DISMISS PENDING.

THE COURT: I GUESS I FIND MYSELF -- WE HAD A CONFERENCE, IF WHAT I HAVE BEEN TOLD IS CORRECT OR REPRESENTED TO, A CONFERENCE A COUPLE OF MONTHS AGO, AND WITHIN 30 OR 45 MINUTES LATER YOU FILED THE, ON BEHALF OF YOUR CLIENT, THE DEC ACTION IN DELAWARE.

MR. MCELHINNY: I DID, YOUR HONOR, AND IN FAIRNESS -- I DID THAT. AND IN FAIRNESS, AT THAT CONFERENCE BEFORE YOUR HONOR AND BEFORE YOU HAD HAD A CHANCE TO READ THESE BRIEFS AND READ THESE CASES, I STOOD HERE IN FRONT OF YOU AND SAID THE ONLY APPROPRIATE WAY TO PROCEED AGAINST A DESIGN AROUND THAT HAS SUBSTANTIAL CHANGES IS TO BRING A SUBSEQUENT ACTION. AND --

THE COURT: WELL, OBVIOUSLY YOU KNEW YOU WERE GOING TO BRING IT WITHIN 30 OR 45 MINUTES.

MR. MCELHINNY: -- AND, WELL, I AM SORRY. BUT IN FAIRNESS, I SAID TO YOU --

THE COURT: WELL, WHAT ABOUT FAIRNESS? DO YOU THINK IT WOULD HAVE BEEN FAIR TO ADVISE ME ON THAT DAY?

MR. MCELHINNY: I BELIEVE, YOUR HONOR, THAT I SPECIFICALLY AT THAT DAY ASKED YOU NOT TO SET A SCHEDULE OF ROLLING CONTEMPT HEARINGS BECAUSE OUR CLIENT IS IN THE POSITION OF BEING ACCUSED PUBLICLY OF INFRINGING THE PATENTS.

THE COURT: I RECALL YOU TAKING THAT POSITION BUT YOU CERTAINLY DIDN'T ALERT THE COURT THAT WAS GOING TO BE FILED WITHIN 30 OR 45 MINUTES OF THE HEARING CONCLUDING. AND MAYBE YOU ARE NOT OBLIGATED TO DO SO, BUT YOU ARE TALKING IN TERMS OF FAIRNESS AND I JUST WANTED TO ASK YOU IN THAT REGARD.

MR. MCELHINNY: AND IN FAIRNESS, YOUR HONOR, IF I HAD BEEN SUCCESSFUL BEFORE YOUR HONOR, WE WOULDN'T HAVE BEEN IN A POSITION WHERE WE HAD TO FILE IT. BUT THAT -- I MEAN, THE POINT IS WE DO NEED A DETERMINATION ABOUT WHETHER OR NOT THIS, THIS, OUR MODIFIED SOFTWARE, INFRINGES THE PATENT. WE NEED THAT. AND --

THE COURT: AND I DON'T KNOW IF I WOULD NECESSARILY DISAGREE, BUT IT SEEMS YOUR CLIENT COULD HAVE GONE ABOUT THIS IN A MUCH DIFFERENT FASHION THAN THEY HAVE DONE.

_*LATER ...*_
MR. MCELHINNY: ... I MEAN, IF YOUR HONOR THINKS WE ARE IN THE WRONG COURT, IF THE DELAWARE COURT THINKS WE ARE IN THE WRONG COURT --

THE COURT: THAT'S NOT MY DECISION. I THINK THAT'S THE DELAWARE'S COURT TO MAKE THAT DECISION.

_*LATER ... a hypothetical verdict posed to Tivo referencing infringement affecting damages*_
THE COURT: ... LET ME ASK YOU TO ASSUME FIRST THAT I FIND THAT CONTEMPT ON THE FACE OF THE ORDER IS NOT APPROPRIATE, AND THEN FOR WHATEVER REASON LET'S SAY I DECIDE THAT THIS IS BEST DETERMINED BY THE ACTION EITHER IN DELAWARE OR A NEW ACTION HERE.​


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## James Long

Bidderman9 said:


> So if SCOTUS decides not to accept the case on 10/6, does that make all this a moot point? Don't you think a SCOTUS action will force a settlement?


No. SCOTUS deciding not to take the case is status quo ... fighting over modifying existing placed products and damages.

SCOTUS taking the case is more case changing. Taking the case would open up the opportunity that the entire case would be reversed and there would be no infringement and no damages (or SCOTUS could uphold the appeals court decision). SCOTUS taking the case is the only path that leads to "moot".


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## James Long

jacmyoung said:


> But in thise case DISH did not have to because DISH has always said the injunction was correct, and they are in full compliance with the injunction.


So you prefer perjury to contempt?


> In this case, DISH never said the injunction was wrong, so the above case does not apply.


DISH did oppose the wording of the injunction ... It really doesn't matter if they say it was wrong or not - disobeying the injunction speaks louder than words.


> The only two cases they cited are both not applicable, if the judge rules DISH is in compliance with his order, as the judge had kept asking Mr. Chu what if I found no violation on the face of injunction, "what does that leave you?"


DISH received similar questioning. It is a tactical questioning ... the overall job of Judge Folsom is to resolve the differences between the parties. He's looking for the middle ground.


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## James Long

jacmyoung said:


> You don't understand, if the DE court accepts DISH's new software infringement complaint, Judge Folsom will not be able to grant TiVo's another new complaint on the new software infringement. The DE court will have the jurisdiction on such complaint already.


Judge Folsom still controls the existing adjudicated products. The product in Delaware is DVR software that can be placed on receivers ... The product in Texas is eight models of adjudicated DVRs. Three models will remain infringing (DISH was unable to update the software) and are being abandoned as products by DISH. The remaining five remain under Judge Folsom's microscope until HE states otherwise.


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## STDog

James Long said:


> JThe product in Texas is eight models of adjudicated DVRs. Three models will remain infringing (DISH was unable to update the software) and are being abandoned as products by DISH. The remaining five remain under Judge Folsom's microscope until HE states otherwise.


OT, but which three were abandoned?


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## James Long

MR. CHU: ... SO TOO HAS THE FIFTH CIRCUIT RULED, AND HERE WE POINT TO A FEDERAL CIRCUIT CASE, CARBORUNDUM, WHERE A SIMILAR ISSUE AROSE. THERE WAS AN INJUNCTION. *THE DISTRICT COURT ENJOINED THE DEFENDANT FROM SELLING CERTAIN PARTS. IN THIS CASE THEY WERE REPAIR PARTS. AND DEFENDANT ARGUED IT WAS INAPPROPRIATE TO ENJOIN THE REPAIR PARTS OR TO HOLD IT IN CONTEMPT BECAUSE THE INJUNCTION SHOULD NOT HAVE INCLUDED REPAIR PARTS, ALTHOUGH IT DID. AND THE FEDERAL CIRCUIT STATED QUITE CLEARLY, QUOTE, "EVEN IF WE WERE TO ACCEPT DEFENDANTS' ARGUMENT, DEFENDANT WAS NOT FREE TO IGNORE THE COURT'S ORDER AS IT DID."*

Chu mentions Echostar's reliance on KSM and that seems to wake up Judge Folsom after eight or nine minutes ... then gets back to Carborundum ...

THE COURT: WELL, CAN YOU CITE ME TO A FEDERAL CIRCUIT CASE THAT STANDS FOR THE PROPOSITION THAT YOU CAN FIND CONTEMPT ON THE DESIGN AROUND WITHOUT CONSIDERING WHETHER THE DESIGN AROUND INFRINGES OR NOT?

MR. CHU: THE CARBORUNDUM ISN'T EXACTLY DESIGN AROUND BUT IT --

THE COURT: THAT WOULD BE YOUR CLOSEST CASE FOR THAT PROPOSITION, YOU THINK?

MR. CHU: IT'S THE CLOSEST CASE TO THE FOLLOWING PROPOSITION. *IF THE TERMS OF THE INJUNCTION ARE CLEAR ON THEIR FACE, CAN THE DEFENDANT VIOLATE THOSE TERMS WITHOUT ASKING THE APPELLATE COURT, WHICH IT COULD HAVE, TO CHANGE THOSE TERMS?* IT DID ASK YOUR HONOR TO CHANGE THE TERMS IN THE FIRST INSTANCE WHEN IT ASKED YOUR HONOR TO ENJOIN ONLY INFRINGING PRODUCTS. WE HAD IT ON THE EARLIER SLIDE. I THINK
IT'S SLIDE 22. IF WE COULD PUT THAT UP AGAIN FOR THE MOMENT, THIS IS THEIR ARGUMENT. THEY ASKED YOUR HONOR TO, QUOTE, "ENJOIN ONLY THE PROVISION OF INFRINGING DVR SOFTWARE UPON ACTIVATION." THAT'S EXACTLY THE SITUATION HERE. AND IT WAS PERHAPS JUST LUCKY ON OUR PART. WE SAID IT INVITES MISCHIEF. YOUR HONOR REJECTED THAT POSITION. AND THEN THEY WENT AHEAD AND USED SELF HELP ANYWAY. THAT'S WHY THE CARBORUNDUM CASE AND THAT'S WHY THE WALKER V. CITY OF BIRMINGHAM, AND I AM GOING TO CITE ANOTHER SUPREME COURT CASE, APPLIED DIRECTLY TO THIS CIRCUMSTANCE. AND THIS IS A CASE THAT IS CITED IN THE CARBORUNDUM CASE. YOU SEE IT AT THE VERY BOTTOM OF THE SLIDE, *GTE SYLVANIA V. CONSUMER UNION*. AND THE FEDERAL CIRCUIT QUOTES FROM THAT CASE, QUOTE: *"A PERSON SUBJECT TO AN INJUNCTIVE ORDER ISSUED BY A COURT WITH JURISDICTION ARE EXPECTED TO OBEY THAT DECREE UNTIL IT IS MODIFIED OR REVERSED EVEN IF THEY HAVE PROPER GROUNDS TO OBJECT TO THE ORDER."* THEN THE FEDERAL CIRCUIT GOES ON TO SAY, QUOTE: "THEREFORE THE COURT DID NOT ABUSE ITS DISCRETION WHEN IT HELD DEFENDANT IN CONTEMPT." THAT'S OUR CASE HERE. THANK YOU.

Twelve minutes into the hearing and DISH responds with KSM ... but is cut off quickly as Judge Folsom runs through his own questions about the design around and Delaware. After getting back to KSM and their agenda they finally get around to Walker vs Birmingham - but don't handle it well.

MR. MCELHINNY: THE LAST THING THAT I WANT TO ADDRESS IS THIS ARGUMENT ABOUT THE WALKER AND THE, YOU KNOW, YOU HAVE TO CHALLENGE THE LANGUAGE OF THE INJUNCTION. THAT'S A CIRCULAR, NONSENSICAL ARGUMENT. IN ORDER TO GET THERE, YOU HAVE TO READ YOUR ORIGINAL INJUNCTION AS HAVING ORDERED US TO TAKE ACTION AGAINST NONINFRINGING PRODUCTS. AND AS YOU KNOW FROM PAICE, AS YOU KNOW DIRECTLY FROM THE FEDERAL CIRCUIT, DISTRICT COURTS CANNOT ENJOIN NONINFRINGING PRODUCTS. SO THERE WAS NOTHING ERRONEOUS ABOUT YOUR ORDER. YOUR ORDER WAS EXACTLY RIGHT. IT WAS WRITTEN EXACTLY AS THE FEDERAL CIRCUIT TELLS YOU TO DO IT TO ENJOIN THE USE OR THE CONTINUED USE OF INFRINGING PRODUCTS. BUT WHAT KSM TEACHES IS YOU CAN MODIFY THOSE PRODUCTS SUCH AS THEY ARE NO LONGER INFRINGING, YOU ARE ENTITLED -- UNLESS IT'S A SHAM, YOU ARE ENTITLED TO A TRIAL ON THE QUESTION OF WHETHER THESE NEW PRODUCTS INFRINGE.​The ultimate "OUT" in Walker vs Birmingham is an injunction that is unreasonable. DISH needs that out yet they seem to be confirming that the injunction was reasonable. This puts Judge Folsom in a position of deciding if (as he stated before) DISH complied with the spirit of the injunction or if they are in contempt.

I wanted to see DISH counter Walker vs Birmingham, not ignore the challenge it presents in this case. Now they face a predicament ... if Judge Folsom decides that DISH did not follow the injunction and IS in contempt they can't go to the next level complaining about the same injunction they just lauded.


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## James Long

STDog said:


> OT, but which three were abandoned?


721, 921, 942. The software still infringes. DISH was trying to get permission to do swaps on these three models through their replacement repair program but dropped their request and have decided to replace any defective 721, 921 and 942s with other receiver models.

The 721s are already being replaced due to smart card issues. The HD 921s and 942s can't be far behind as customers are encouraged to move to MPEG4 HD. (People who got 921s and 942s generally got them to get HD and most should have already moved on to a MPEG4 HD receiver over the past 30 months.)


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## kmill14

Well, without going back a few pages, it must be pointed out that Chu was spot on in arguing against KSM, which clearly talks about 2 different lines of products, those that was adjudicated on (DP-501, etc) and those that were not (ViP722). 

TiVo is not arguing that E* is in contempt because of the ViP722. They are still arguing about the DP-501. KSM is not a factor in this particular contempt hearing, and E* had no argument for it.


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## dgordo

A declaratory judgment is a legal term that can only have one meaning, all the parties to the case know what it means. 

As for what the comment meant, see what I said before and what curtis reiterated.


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## phrelin

Well, after reading the transcript, for me the two most telling statements by the Judge were:


> I AM QUITE PLEASED, IN VIEW OF THE HISTORY OF THIS CASE, THAT WE ARE SO CLOSE BETWEEN 223 AND 16 MILLION. IT'S GREAT PROGRESS.
> 
> THE PROBLEM WITH THESE CASES, THEY DON'T EVER END IT SEEMS.


Other than, I think he's irked with Echostar and frustrated with TiVo.

Whatever he's about to do, I think it will be appealed and lost on appeal.

But hey, SCOTUS might take up the last appeal, confirming his observation about the case never ending.


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## Mainer_ayah

jacmyoung said:


> You don't understand, if the DE court accepts DISH's new software infringement complaint, Judge Folsom will not be able to grant TiVo's another new complaint on the new software infringement. The DE court will have the jurisdiction on such complaint already.
> 
> The point is by Judge Folsom saying, it would be up to the DE court not me, it showed that he did not care if he would be the one to again preside over a new suit on the new software infirngement complaint, if filed by TiVo.
> 
> Many of you folks earlier insisted Judge Folsom would be PO'ed had he not given the opportunity to preside over the new case because DISH might take it away from him by filing it first with the DE court.
> 
> But Judge Folsom apparently did not care that much.


My interpratation of judge Folsoms comment is he meant to say to McIlhiny Your'e the jerk that filed in DE 30 minutes after walking out of my courtroom, not me.


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## jacmyoung

James Long said:


> So you prefer perjury to contempt?


If the judge agrees with DISH, is it still perjury or would judge have committed perjury himself? Even if the judge disagrees with DISH, it is likely a matter of difference in interpretation. A good faith effort to come into compliance is just what the court expects, if it turns out wrong, it is wrong, but no perjury at all. If judge disagrees with TiVo, will TiVo have committed perjury?



> DISH did oppose the wording of the injunction ... It really doesn't matter if they say it was wrong or not - disobeying the injunction speaks louder than words.
> DISH received similar questioning. It is a tactical questioning ... the overall job of Judge Folsom is to resolve the differences between the parties. He's looking for the middle ground.


As DISH said, DISH did oppose the initial wording of the injunction which proposed to recall all DVRs already in the warehouse, which the judge agreed. DISH never opposed the wording in the current injunction during the appeal because at that time they believed they could design around it.

The most you can say is DISH failed to alert the judge of the design around idea, and even though the judge did not like that fact, in the end he did say he was only trying to make a point, he did not mean he had to be alerted.


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## James Long

Mainer_ayah said:


> My interpratation of judge Folsoms comment is he meant to say to McIlhiny Your'e the jerk that filed in DE 30 minutes after walking out of my courtroom, not me.


THE COURT: I RECALL YOU TAKING THAT POSITION BUT YOU CERTAINLY DIDN'T ALERT THE COURT THAT WAS GOING TO BE FILED WITHIN 30 OR 45 MINUTES OF THE HEARING CONCLUDING. AND MAYBE YOU ARE NOT OBLIGATED TO DO SO, BUT YOU ARE TALKING IN TERMS OF FAIRNESS AND I JUST WANTED TO ASK YOU IN THAT REGARD.

THE COURT: AND I DON'T KNOW IF I WOULD NECESSARILY DISAGREE, BUT IT SEEMS YOUR CLIENT COULD HAVE GONE ABOUT THIS IN A MUCH DIFFERENT FASHION THAN THEY HAVE DONE.

Judge Folsom wasn't happy ... but I don't see him calling McElhinny a jerk. The ire is (appropriately) directed at the client pulling the strings, not the puppet.

It is also another example of the difference between following the law and courtesy toward the judge. When something isn't required (such as the notifications Judge Folsom was annoyed that he did not receive) the Judge really has no recourse except to move on after his rebuke.


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## jacmyoung

James Long said:


> ...I wanted to see DISH counter Walker vs Birmingham, not ignore the challenge it presents in this case. Now they face a predicament ... if Judge Folsom decides that DISH did not follow the injunction and IS in contempt they can't go to the next level complaining about the same injunction they just lauded.


DISH never had to, the judge did it for them, by asking Mr.Chu if I found DISH not in violation on face of the injunction (meaning in compliance of my order), wouldn't you think that case was not an issue anymore? It was a very long question as he admitted, but Mr. Chu failed to answer it, instead he used the "C" case to argue even if the Judge Ward case was not an issue, the "C" case demonstrated the infringer needs to ask the court to modify the injunction if the infringer disagrees with the wording of the order.

Missing the point again, the judge was asking, what if I agreed with DISH, that they did not violate my order on its face (meaning DISH is in compliance)? What does that leave you?

The judge seriously questioned Mr. Chu's dismissal of KSM, for a good reason, because anyone who cared to read all those court cases, including those by Judge Folsom, KSM is the governing case by which all contempt of patent infringement injunction cases are based on.

The judge asked Mr. Chu to cite him another case, the closest as the Judge jokingly said, was Mr. Chu's "C" case, as Mr. Chu himself admitted it wasn't really the same situation anyway.

No one can dismiss KSM, KSM is the standard of which all such cases are based on, to think you can easily dismiss it is naiive.

At a minimum, if you want to dismiss a case as powerful as KSM, give the judge an alternate case law that is at least similarly powerful to cite on, if you want the judge to help you. Mr. Chu failed completely, why? Because never had the court said products already in the hands of the end users may not be designed around.


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## James Long

Thanks again Mainer (and drumrboy) for the transcript so we can read what really happened instead of relying on skewed and incorrect summaries such as the one above.


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## phrelin

Regarding the KSM case:


> THE COURT: WELL, CAN YOU CITE ME TO A FEDERAL CIRCUIT CASE THAT STANDS FOR THE PROPOSITION THAT YOU CAN FIND CONTEMPT ON THE DESIGN AROUND WITHOUT CONSIDERING WHETHER THE DESIGN AROUND INFRINGES OR NOT?
> 
> MR. CHU: THE CARBORUNDUM ISN'T EXACTLY DESIGN AROUND BUT IT --
> 
> THE COURT: THAT WOULD BE YOUR CLOSEST CASE FOR THAT PROPOSITION, YOU THINK?


The "You think?" sounds like sarcasm to me. Hence, my comment that he's frustrated with TiVo.


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## James Long

jacmyoung said:


> At a minimum, if you want to dismiss a case as powerful as KSM, give the judge an alternate case law that is at least similarly powerful to cite on, if you want the judge to help you.


Walker vs Birmingham; Carborundum; GTE Sylvania v Consumer Union.

KSM would be good if this was a straight infringement case ... but the issue here is contempt of the court's injunction, not infringement.

Tivo's proposition: *IF THE TERMS OF THE INJUNCTION ARE CLEAR ON THEIR FACE, CAN THE DEFENDANT VIOLATE THOSE TERMS WITHOUT ASKING THE APPELLATE COURT, WHICH IT COULD HAVE, TO CHANGE THOSE TERMS?*

GTE Sylvania vs Consumer Union: *"A PERSON SUBJECT TO AN INJUNCTIVE ORDER ISSUED BY A COURT WITH JURISDICTION ARE EXPECTED TO OBEY THAT DECREE UNTIL IT IS MODIFIED OR REVERSED EVEN IF THEY HAVE PROPER GROUNDS TO OBJECT TO THE ORDER."*


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## CuriousMark

jacmyoung said:


> As DISH lawyers said, TiVo was in circular exchange with the judge.


That is only true if you accept Dish's arguments as a basis. If you don't accept them, then TiVo's exchange was quite linear. It is an example of making an argument based on already accepting the outcome of what is being debated in your own favor. It is a good debating tactic, but it certainly does not make it true.


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## Bidderman9

James Long said:


> No. SCOTUS deciding not to take the case is status quo ... fighting over modifying existing placed products and damages.
> 
> SCOTUS taking the case is more case changing. Taking the case would open up the opportunity that the entire case would be reversed and there would be no infringement and no damages (or SCOTUS could uphold the appeals court decision). SCOTUS taking the case is the only path that leads to "moot".


I guess what I am trying to sayis that if SCOTUS denies the case, doesn't that apply more financial pressure to reach a settlement quickly before they have to come up with (up to) an addition 223Mil? I figured that it would be easier to negotiate before that figure was finalized. Once it is finalized E* has nothing left to negotiate with.

Although, I have often wondered whether Tivo has been the one trying to drive too hard of a bargain considering that they are in the drivers seat.


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## James Long

Bidderman9 said:


> I guess what I am trying to sayis that if SCOTUS denies the case, doesn't that apply more financial pressure to reach a settlement quickly before they have to come up with (up to) an addition 223Mil? I figured that it would be easier to negotiate before that figure was finalized. Once it is finalized E* has nothing left to negotiate with.
> 
> Although, I have often wondered whether Tivo has been the one trying to drive too hard of a bargain considering that they are in the drivers seat.


The 223 million is so far out that I wouldn't worry about it. Tivo doesn't get to set the price, the court does and Judge Folsom seemed very surprised at the size of the additional damage request (and equally surprised at the size of DISH's estimate).

SCOTUS accepting the case adds complication ... It gives a glimmer of hope to DISH and the possibility of loss to Tivo (including the original damage award). SCOTUS declining to accept the case is status quo. Not a major event.


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## Greg Bimson

This, I believe, is the most telling exchange:


> MR. CHU: WE DISAGREE WITH THE POSITION TAKEN BY ECHOSTAR. THERE ARE TWO SEPARATE ISSUES, ALTHOUGH THEY BOTH HAVE THE WORD CONTEMPT IN THEM. THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED? AND WHEN THE INJUNCTION SAYS THOU SHALT --
> THE COURT: AND IF I FIND NO, WHERE DO YOU THINK THAT LEAVES TIVO, THEN?
> *MR. CHU: OKAY. SUPPOSE YOU RULE THAT IT WAS COMPLIED WITH AND THAT THEY ACTUALLY DISABLED --
> THE COURT: WELL, THEN IT'S NOT VIOLATED ON ITS FACE.*
> MR. CHU: OKAY. THEN THERE IS THIS SECOND HEARING IN YOUR COURT, I THINK IT WAS IN MAY, WHEN YOU ESTABLISHED -- AFTER THE MAY HEARING, YOU ESTABLISHED TWO SEPARATE HEARINGS. ONE TO SEE IF THERE WAS CONTEMPT AND IT COULD BE DETERMINED THROUGH THIS PROCEEDING AND THIS HEARING WITHOUT THE NEED TO GO INTO THEIR ARGUMENTS ON THE TECHNOLOGY AND WHETHER THE CHANGES WERE MATERIAL OR NOT. OKAY, SO THAT'S THIS HEARING.


"...and that they actually disabled --"

Straight to the heart of the matter. The order says "disable".

KSM and every other patent infringement citation is about violating the order enjoining sales of infringing products. Not this contempt motion.


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## James Long

Greg Bimson said:


> This, I believe, is the most telling exchange:"...and that they actually disabled --"
> 
> Straight to the heart of the matter. The order says "disable".


Yep.

I felt too little time and discussion with Echostar was spent on the "did you disable" issue. A lot of time was burned on the Judge's questions about Delaware and not being notified of the work around. It may just be Judge Folsom allowing the parties to present the case that they want to present with limited interruption ... but I expected more focus on the issue. "DID YOU DISABLE THE DVRs?"

With the clear description of "disable" in the injunction and the clear list of applicable models I don't see how Judge Folsom can say they were disabled per the letter of the injunction. He may rule that the spirit of the injunction was followed (as he suggested June 5th) but ruling the letter was followed would be a complete joke.


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## Greg Bimson

jacmyoung said:


> As DISH lawyers said, TiVo was in circular exchange with the judge.





CuriousMark said:


> That is only true if you accept Dish's arguments as a basis. If you don't accept them, then TiVo's exchange was quite linear. It is an example of making an argument based on already accepting the outcome of what is being debated in your own favor. It is a good debating tactic, but it certainly does not make it true.


The BIG problem with DISH/SATS argument:


> McElhinny: The last thing that I want to address is this argument about the _Walker_ and the, you know, you have to challenge the language of the injunction. That's a circular, nonsensical argument. In order to get there, you have to read your original injunction as having ordered us to take action against noninfringing products. And as you know from _Paice_, as you know directly from the federal circuit, district courts cannot enjoin noninfringing products...


This is the BIG mistake. DISH/SATS counsel McElhinny made two major incorrect assumptions with this line:

1) The injunction in _Carborundum_ prohibited the sales of spare parts. In and of itself, the spare parts were not infringing products. Therefore, district courts CAN enjoin non-infringing products.
2) The products subject to this contempt motion have already been found infringing. A modification of those infringing products does not automatically make those products non-infringing.


> ...So there was nothing erroneous about your order. Your order was exactly right. It was written exactly as the federal circuit tells you to do it to enjoin the use or the continued use of infringing products. But what _KSM_ teaches is you can modify those products such as they are no longer infringing, you are entitled -- unless it's a sham, you are entitled to a trial on the question of whether these new products infringe.


The other mistake:

There aren't any "new" products being accused of infringement. Unless Joe Blow's four year old 501 and Jack SixPack's three year old 625 suddenly up and vanished, the old products still exist. They may have been modified, but they have been found infringing and are subject to a disable order.


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## Curtis52

Greg Bimson said:


> 1) The injunction in _Carborundum_ prohibited the sales of spare parts. In and of itself, the spare parts were not infringing products. Therefore, district courts CAN enjoin non-infringing products.


Injunctions are allowed to prevent infringement.


> "Note that you may be liable for inducing infringement or contributing to infringement, even if you did not directly infringe a patent, if you encourage or assist someone else to infringe a patent."http://www.chillingeffects.org/patent/notice.cgi?NoticeID=446


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## Curtis52

Greg Bimson said:


> There aren't any "new" products being accused of infringement. Unless Joe Blow's four year old 501 and Jack SixPack's three year old 625 suddenly up and vanished, the old products still exist. They may have been modified, but they have been found infringing and are subject to a disable order.


KSM didn't think there were any "new" products either when they filed against Jones. That's why they filed for contempt instead of filing a new lawsuit. Contempt only works if there is only a colorable difference which for all practical purposes is the same as no difference.


> "Under the standard we conclude is appropriate, *the judgment must be set aside as a matter of law because of the refusal of the district court to consider whether the Jones ULTRA-LOK devices infringed the claims of the '217 patent*." KSM


----------



## James Long

Curtis52 said:


> Injunctions are allowed to prevent infringement.
> 
> 
> 
> "Note that you may be liable for inducing infringement or contributing to infringement, even if you did not directly infringe a patent, if you encourage or assist someone else to infringe a patent."http://www.chillingeffects.org/patent/notice.cgi?NoticeID=446
Click to expand...

So ... you're suggesting the sale of non-infringing products can be prohibited via a "chain of infringement"? And that in the injunction in Carborundum the non-infringing repair parts were prohibited because they allowed continued infringement by the original products?

In actuality the repair parts ARE a critical part of the defendant in Carborundum's products ... due to wear the products more is spent on repair parts than new products. So in essence, the injunction in Carborundum was ending the infringement on the original products which went unmodified and would continue to infringe. Denying repair parts was a way for the court to effectively end use of the products and end infringement.

Applying more than just the disobedience of the court order to Tivo vs Echostar ... the order to disable the DVR functionality was the court's attempt to stop further infringement. Unlike Carborundum, DISH has apparently found a non-infringing way of making their pre-existing products work. The new software has not yet survived a court test.

There was no dispute in Carborundum that their products continued to infringe (and continued to operate due to the provision of the repair parts). There is a dispute in Tivo vs Echostar over whether the existing placed products still infringe the patent. That is the difference.

The similarity is that the defendant took the law into their own hands and simply disobeyed the injunction instead of notifying the court and getting the injunction modified.

More on Carborundum
Both parties assert error in the district court's decision in the subsequent contempt proceedings. We review a district court's finding of contempt for an abuse of discretion. KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532, 227 USPQ 676, 684 (Fed. Cir. 1985).

On appeal, MMEI asserts that it cannot be found to be in contempt because the court's injunction should not have prevented MMEI from selling repair parts. We have held to the contrary in the previous section of this opinion. However, even if we were to accept MMEI's argument, MMEI was not free to ignore the court's order as it did. See GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386 (1980) ("[P]ersons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order."). Therefore, the court did not abuse its discretion when it held MMEI in contempt.​


----------



## jacmyoung

CuriousMark said:


> That is only true if you accept Dish's arguments as a basis. If you don't accept them, then TiVo's exchange was quite linear. It is an example of making an argument based on already accepting the outcome of what is being debated in your own favor. It is a good debating tactic, but it certainly does not make it true.


If you read carefully, the questions the judge asked TiVo was what if I agreed with DISH that they were right, that they were not in violation on the face, what said you?

I agree it was an assumption, but still TiVo must respond under such assumption, instead TiVo's response (including citing the Dr. King case and the "C" case) were still based on TiVo's argument that DISH violated the order.

No, when the judge asked what if I found DISH not in contempt (therefore in compliance), what case law did you have? When the case law TiVo cited in response continued to be cases of violation of the order, then the answer was circular.

And likewise, the "C" case people continue to use to make argument on TiVo's behalf, will be moot if the judge finds DISH in compliance.

Unless you insist it is impossible for the judge to find DISH in compliance, then we will just have to wait and find out.


----------



## phrelin

I'm thinking that the debate here would not be resolved and silenced with a SCOTUS ruling because, after all, it would probably be by a 6-3 vote. Is my thinking correct?


----------



## James Long

jacmyoung said:


> If you read carefully, the questions the judge asked TiVo was what if I agreed with DISH that they were right, that they were not in violation on the face, what said you?


It is a complicated question ... Tivo's lawyer focused on the steps that Judge Folsom set up in June - contempt on the face of it. They redirected Judge Folsom's questions more than they answered them ...MR. CHU: ... THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED? AND WHEN THE INJUNCTION SAYS THOU SHALT --

THE COURT: AND IF I FIND NO, WHERE DO YOU THINK THAT LEAVES TIVO, THEN?​Clear question ... If I find the injunction was not violated on it's face ... Tivo redirects ...MR. CHU: OKAY. SUPPOSE YOU RULE THAT IT WAS COMPLIED WITH AND THAT THEY ACTUALLY DISABLED --​"Actually disabled" is what the injunction required. There are ways of getting to "contempt denied" without actually disabling ... the suggested "complied with the spirit of the injunction" avoids contempt without actually disabling.

Of course if the DVR products were actually disabled there is no contempt:THE COURT: WELL, THEN IT'S NOT VIOLATED ON ITS FACE.​This "then" immediately following Tivo's hypothetical "actually disabled".

Tivo didn't answer the question of what happens if Judge Folsom rules that the injunction was not violated on the face. They answered a different question.


> I agree it was an assumption, but still TiVo must respond under such assumption, instead TiVo's response (including citing the Dr. King case and the "C" case) were still based on TiVo's argument that DISH violated the order.


Tivo's presentation of Walker vs Birmingham and Carborundum were earlier in the discussion ... not as a response to the judge's exchange.

And those cases go to the core of Tivo's argument ... it doesn't matter if an injunction is fair: it must be followed. Otherwise, it is contempt of the court.


> And likewise, the "C" case people continue to use to make argument on TiVo's behalf, will be moot if the judge finds DISH in compliance.


A lot falls apart if DISH is found to have complied with the letter or the spirit of the injunction. It doesn't clear DISH of infringement, but it would clear DISH of contempt (for now).


----------



## James Long

phrelin said:


> I'm thinking that the debate here would not be resolved and silenced with a SCOTUS ruling because, after all, it would probably be by a 6-3 vote. Is my thinking correct?


A SCOTUS ruling is too far out.

If SCOTUS decides to accept the case it will put a cloud over the rest of the proceedings but nothing will be resolved and silenced for a while.


----------



## jacmyoung

James Long said:


> It is a complicated question ... Tivo's lawyer focused on the steps that Judge Folsom set up in June - contempt on the face of it. They redirected Judge Folsom's questions more than they answered them ...MR. CHU: ... THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED? AND WHEN THE INJUNCTION SAYS THOU SHALT --
> 
> THE COURT: AND IF I FIND NO, WHERE DO YOU THINK THAT LEAVES TIVO, THEN?​Clear question ... If I find the injunction was not violated on it's face ... Tivo redirects ...MR. CHU: OKAY. SUPPOSE YOU RULE THAT IT WAS COMPLIED WITH AND THAT THEY ACTUALLY DISABLED --​"Actually disabled" is what the injunction required. There are ways of getting to "contempt denied" without actually disabling ... the suggested "complied with the spirit of the injunction" avoids contempt without actually disabling.
> 
> Of course if the DVR products were actually disabled there is no contempt:THE COURT: WELL, THEN IT'S NOT VIOLATED ON ITS FACE.​This "then" immediately following Tivo's hypothetical "actually disabled".
> 
> Tivo didn't answer the question of what happens if Judge Folsom rules that the injunction was not violated on the face. They answered a different question.


Right, TiVo failed to answer the judge's questions several times as you pointed out, until the judge pressed him to the end, so when you could not respond to a direct question, that to me looks like a circular exchange, consider the two cases TiVo cited. So it was not that off when the DISH lawyer said it was circular.



> ...A lot falls apart if DISH is found to have complied with the letter or the spirit of the injunction. It doesn't clear DISH of infringement, but it would clear DISH of contempt (for now).


No, if DISH is found in compliance, that finding must be based on the design around to be more than colorable, or to say if TiVo fails to prove with clear and convincing evidence the design around still infringes.

So yes it will clear DISH of infringement by the new design around, as far as this lawsuit is concerned.

Of course TiVo can continue to try to find the new design around still infringe, but it has to be done in a new suit, a new proceeding, independent of this lawsuit.


----------



## Curtis52

jacmyoung said:


> Of course TiVo can continue to try to find the new design around still infringe, but it has to be done in a new suit, a new proceeding, independent of this lawsuit.


It would not need to be a new lawsuit. It could be a supplemental complaint.


----------



## Greg Bimson

Curtis52 said:


> KSM didn't think there were any "new" products either when they filed against Jones. That's why they filed for contempt instead of filing a new lawsuit.





> "Under the standard we conclude is appropriate, the judgment must be set aside as a matter of law because of the refusal of the district court to consider whether the Jones ULTRA-LOK devices infringed the claims of the '217 patent." KSM


You're kidding, right?

KSM filed a motion for contempt because Jones sold the "new" ULTRA-LOK devices, accusing infringement of a construct never adjudged before the court. Meanwhile, the devices enjoined by the injunction were the THERMA-LOK devices.


Curtis52 said:


> Contempt only works if there is only a colorable difference which for all practical purposes is the same as no difference.





> "Second, Fisher-Price argues that Safety 1st violated the Injunction by failing to make all reasonable efforts to retrieve infringing products from Safety 1st's major retail customers. The court agrees. Safety 1st hired another company to retrieve infringing products from Toys 'R Us and Babies 'R Us. That was a reasonable effort. But Safety 1st admits that it did not make similar efforts with its other major retail customers, such as Target. The court's order was unambiguous: Safety 1st was required to "make every reasonable effort possible." Safety 1st did not. Considering the inconsistent and delayed retrieval efforts to which Safety 1st has admitted during depositions and at trial, the court finds that Safety 1st is in contempt of the Injunction with respect to its efforts to retrieve infringing products from major retail customers." Fisher-Price v. Safety 1st


There was a finding of contempt, yet no evaluation of colorable difference.

In other words, contempt does NOT require an evaluation of colroable difference.


----------



## Curtis52

Greg Bimson said:


> There was a finding of contempt, yet no evaluation of colorable difference.
> In other words, contempt does NOT require an evaluation of colroable difference.


That case is not applicable. Neither side claimed that there was any difference at all. There was no controversy about whether there was a difference.


----------



## Ergan's Toupe

James Long said:


> Thanks again Mainer (and drumrboy) for the transcript so we can read what really happened instead of relying on skewed and incorrect summaries such as the one above.


You are welcome. :grin:


----------



## STDog

Greg Bimson said:


> There aren't any "new" products being accused of infringement. Unless Joe Blow's four year old 501 and Jack SixPack's three year old 625 suddenly up and vanished, the old products still exist.


If said products were in use they have been modified. If not in use they will be modified when put back into service.

Remember modern electronics products can be significantly modified through software. FPGAs and CPLDs can be made to function in completer different ways.

If you has a Windows 95 computer, and you installed Linux over top of that, would you consider the new Linux computer a different product?

They would function in completely different ways. Only minor similarities in the user interface would be present.

That is Echostar's argument. The new software changes the operation enough to be a different product. So the infringing products are no longer in operation. They did vanish.

I think E* err'd in not changing the product name. They should have designated the new product the 50xB or 60x or similar. They did that in the past, when the 4700 were upgraded/reconfigured to be the 4900.


----------



## Curtis52

Greg Bimson said:


> You're kidding, right?
> 
> KSM filed a motion for contempt because Jones sold the "new" ULTRA-LOK devices, *accusing infringement* of a construct never adjudged before the court. Meanwhile, *the devices enjoined by the injunction were the THERMA-LOK devices*.


No. The devices enjoined against use by the injunction were "anchors of the *type and nature* identified by the Plaintiff in its Complaint against the Defendant". In other words, only colorable.
Also, the whole reason KSM was overturned was that the district court refused to look at infringement.


----------



## Greg Bimson

Curtis52 said:


> That case is not applicable. Neither side claimed that there was any difference at all. There was no controversy about whether there was a difference.


There was, but it didn't apply to the order to recall.


Curtis52 said:


> No. The devices enjoined against use by the injunction were "anchors of the type and nature identified by the Plaintiff in its Complaint against the Defendant". In other words, only colorable.





> Pursuant to a settlement agreement between the parties, which was entered as a consent decree on March 6, 1980, Jones acknowledged the validity of the KSM patent, *admitted infringement thereof by its THERMAL-LOCK device, and was enjoined from further infringement.* KSM


And unless I can see an exact copy of the KSM injunction against Jones, it is obvious the THERMAL-LOCK device itself was also enjoined.

Heck, the injunction itself is a violation of Rule 65(d), as the injunction is not to refer to any other documents. I can only assume that the refering document mentions the THERMAL-LOCK by name.


----------



## phrelin

James Long said:


> A SCOTUS ruling is too far out.
> 
> If SCOTUS decides to accept the case it will put a cloud over the rest of the proceedings but nothing will be resolved and silenced for a while.


What I was asking is even if we had a 6-3 SCOTUS ruling would y'all still be arguing over who's right?.

Just my sarcasm over how arguing over precedent can easily bury any effort to try to achieve some justice in cases like this. What's going on in this thread is what's going on in the courts.

IMHO there is no precedent case for dealing with the facts here, partly because of the fact that the plaintiff and the defendant have two different business models, partly because the technology here is just different from previous cases, and partly because the justice system can't deal with technology cases in less than 6 months which is the only relevant time frame.

The American justice system which relies on precedent is simply not a useful way to deal with cases like this. Maybe it worked for covered wagon designs.


----------



## Curtis52

Greg Bimson said:


> There was, but it didn't apply to the order to recall.And unless I can see an exact copy of the KSM injunction against Jones, it is obvious the THERMAL-LOCK device itself was also enjoined.


It sounded like you claimed only the THERMAL-LOK was enjoined and that KSM had a new complaint against a different device entirely. My point was that KSM said that the ULTRA-LOK was also enjoined because it was essentially identical. That was the whole reason for the contempt filing. You claimed that they were different parts and only one was enjoined. KSM said they were the same parts and that both were enjoined. You are disagreeing with KSM.


----------



## James Long

Greg Bimson said:


> Pursuant to a settlement agreement between the parties, which was entered as a consent decree on March 6, 1980, Jones acknowledged the validity of the KSM patent, *admitted infringement thereof by its THERMAL-LOCK device, and was enjoined from further infringement.* KSM
> 
> 
> 
> And unless I can see an exact copy of the KSM injunction against Jones, it is obvious the THERMAL-LOCK device itself was also enjoined.
Click to expand...

MR. CHU: HERE ARE THE KEY DIFFERENCES IN THAT CASE AND IT EXTENDS TO OTHER CASES IN THAT LINE, REMEMBERING THESE TWO LINES EXIST SIDE BY SIDE. FIRST OF ALL, KSM IS A SETTLEMENT. THERE IS A CONSENT TO --

THE COURT: IS A WHAT?

MR. CHU: A SETTLEMENT. IT'S NOT A FULL TRIAL ON THE MERITS. THERE IS A CONSENT DECREE IN THE SETTLEMENT THAT THE PARTIES PUT BEFORE THE COURT JOINTLY.

THE COURT: WELL, WHY IS THAT IMPORTANT YOU FEEL?

MR. CHU: WELL, FIRST OF ALL, THERE ISN'T A FULL ADJUDICATION, BUT HERE IS THE KEY DIFFERENCE. WE HAVE SEPARATE PRODUCTS. WE HAVE THE THERMAL-LOCK PRODUCTS THAT WERE THE EXPRESSED SUBJECT OF THE CONSENT DECREE IN THE SETTLEMENT. SO THEY STOPPED SELLING THERMAL-LOCK. THAT WASN'T THE SUBJECT OF THE CONTEMPT. INSTEAD, THERE WERE NEW PRODUCTS CALLED THE ULTRA-LOK I AND LATER THE ULTRA-LOK II PRODUCTS. THERE WAS NO ADJUDICATION BY A COURT ON THOSE PRODUCTS. THEY WERE NOT INCLUDED IN THE CONSENT DECREE. THERE WASN'T LANGUAGE SAYING, AND WE ARE GOING TO STOP YOU FROM USING OR YOU HAVE TO DISABLE THE OPERATION AS AN EXAMPLE OF THE ULTRA-LOK PRODUCTS AT ALL.

SO, IT'S A TYPICAL CIRCUMSTANCE, YOUR HONOR, WHERE THERE IS AN INJUNCTION AND SAYS THOU SHALL NOT SELL PRODUCT A, OR SIMILAR PRODUCTS, OR INFRINGING PRODUCTS. NOW, PRODUCT B COMES ALONG AND THEN THE QUESTION IS, WHAT'S THE PROCEDURE AND IS CONTEMPT APPROPRIATE? THAT'S WHAT KSM ADDRESSES. IT DOES NOT ADDRESS THE SITUATION WHERE WE HAVE AN ADJUDICATION, A JURY VERDICT, POST TRIAL MOTIONS, AFFIRMED ON APPEAL OF EXACTLY THE PRODUCTS THAT THEY FAILED TO DISABLE. THAT IS A CRITICAL DIFFERENCE.​Thermal-Lock was not the subject of the contempt. A new product Ultra-Lok was the target of the contempt.


----------



## James Long

KSM Reference ... not the injunction, but good reading.

KSM Fastening Systems, Inc. v. H.A. Jones Co., Inc.


----------



## STDog

phrelin said:


> because the justice system can't deal with technology cases in less than 6 months which is the only relevant time frame.
> 
> The American justice system which relies on precedent is simply not a useful way to deal with cases like this. Maybe it worked for covered wagon designs.


AMEN.

That's also an issue for the current patent system too.


----------



## phrelin

STDog said:


> AMEN.
> 
> That's also an issue for the current patent system too.


One of my pet peeves too.


----------



## jacmyoung

phrelin said:


> One of my pet peeves too.


While I agree with both of you that the patent system needs reform, especially when it comes to dealing with software issues. Dependence on case law is the only correct way to go about it. Maybe the delay can be reduced but that means money, something I am afriad we don't have right now.

Dependence on case law is particularly important in a contempt setting. And this case is no different than any other cases on the contempt issues.

But the infringement verdicts on software products have been a great deal of debate. One of the most significant is closely related to the Footrprint2.0 case I have quoted many times before, where a very simple idea of how the Internet traffic may be managed was patented and found to be valid, and the patentee has been very successful litigating everyone out of business. The only reason in the Footprint2.0 case the infringer was successful to eventually get out of a contempt and sign a cross licensing agreement with the patentee was because it had the resourses to endure the court battles.


----------



## jacmyoung

Curtis52 said:


> That case is not applicable. Neither side claimed that there was any difference at all. There was no controversy about whether there was a difference.


Actually the second half of this case was absolutely applicable, Greg just refuses to mention it.

On the issue of the "B" products, the infringer was found not in contempt, even though it had clearly violated the letter of the order by not pulling the "B" products off the shelves, and by continuing to sell those products specifically named in the order to be pulled off the shelves and to be stopped from selling.

The reason? The infringer "claimed" some of those named products had a modified part in them and were already on the shelves before the injunction took effect. They just did not tell the court until the patentee brought up the contempt charge. Sounds familiar isn't it?

As far as KSM, you are correct, the so called "new products" as Greg and TiVo insisted, were supposedly enjoined as well as claimed by the patentee, and the district court agreed with the patentee they were enjoined, but since the district court found contempt without looking at the modified parts, the Circuit Court overturned the contempt ruling. Because as the appeals court said, the lower court could not not looking at the modification.

That is why KSM is the basis for all contempt issues on patent cases when design around situation is present. Before KSM, there was no uniform standards to go by, each Federal Circuit court used different rules, though they were quite similar.

Only after KSM, a uniform standard was established. For TiVo's lawyers to try to dismiss KSM is just nuts, IMHO.


----------



## STDog

jacmyoung said:


> Dependence on case law is the only correct way to go about it. Maybe the delay can be reduced but that means money, something I am afriad we don't have right now.


Nothing wrong with case law.

The big problem is the cases take too long. This should have been done in 6 month, not years. Money for the courts isn't the issue, it's the system.

Also a problem is that those deciding the cases (judges and juries) have little or no knowledge of the subject matter (same problem at the PTO).

No way the average Joe on a jury has a clue about the technical details when deciding infringement. So the case isn't decided on technical details, but on which lawyer tells the best tale.

Of course if the PTO were fixed (and most patents granted over the last 20 years were reexamined/thrown out) case like this wouldn't be in front of juries.

Rest assured juries in technical case are not peers. Peers would be engineers from other similar companies and fields.


----------



## scooper

jacmyoung said:


> While I agree with both of you that the patent system needs reform, especially when it comes to dealing with software issues. Dependence on case law is the only correct way to go about it. Maybe the delay can be reduced but that means money, something I am afraid we don't have right now.


If something isn't done about it - the courts will eventually be reduced to meaninglessness.



jacmyoung said:


> Dependence on case law is particularly important in a contempt setting. And this case is no different than any other cases on the contempt issues.


Speed, Speed, Speed - With software in particular, if the issue is not resolved quickly - it becomes irrelevant. If it means locking the judge and the lawyers for each side in sequestration to speedily resolve it - then so be it. After all, they seem to feel they can do that to us when it suits them for a jury.



jacmyoung said:


> But the infringement verdicts on software products have been a great deal of debate. One of the most significant is closely related to the Footprint2.0 case I have quoted many times before, where a very simple idea of how the Internet traffic may be managed was patented and found to be valid, and the patentee has been very successful litigating everyone out of business. The only reason in the Footprint2.0 case the infringer was successful to eventually get out of a contempt and sign a cross licensing agreement with the patentee was because it had the resources to endure the court battles.


Sounds like a certain case we've been discussing, doesn't it ? Except I don't see a settlement coming out of it without certain conditions, and I think the two sides positions cannot be resolved and still accomodate the other.


----------



## Ergan's Toupe

STDog said:


> Of course if the PTO were fixed (and most patents granted over the last 20 years were reexamined/thrown out) case like this wouldn't be in front of juries.


You do realize that Charlie tried this already and failed miserably, right?

Will you take this same tact if/when Charlie gets his patent?

Tivo's patents where validated. Deal with it.


----------



## Greg Bimson

jacmyoung said:


> Actually the second half of this case was absolutely applicable, Greg just refuses to mention it.


Au contraire. I did mention it. Quickly.


jacmyoung said:


> On the issue of the "B" products, the infringer was found not in contempt, even though it had clearly violated the letter of the order by not pulling the "B" products off the shelves, and by continuing to sell those products specifically named in the order to be pulled off the shelves and to be stopped from selling.


Incorrect. On the issue of the "B" products, the infringer was found in contempt. The issue was the "C" products, and the fact that Safety 1st's records had an issue dealing with said model number.

There was a modification made, and Safety 1st's own systems couldn't recognize *sales* of said product.

And that was because Fisher-Price accused products of being sold that were enjoined.

Meanwhile, TiVo is simply accusing products found infringing to follow the order issued by the court; disable the products found infringing.


----------



## Zero327

Greg Bimson said:


> Au contraire. I did mention it. Quickly.Incorrect. On the issue of the "B" products, the infringer was found in contempt. The issue was the "C" products, and the fact that Safety 1st's records had an issue dealing with said model number.
> 
> There was a modification made, and Safety 1st's own systems couldn't recognize *sales* of said product.
> 
> And that was because Fisher-Price accused products of being sold that were enjoined.
> 
> Meanwhile, TiVo is simply accusing products found infringing to follow the order issued by the court; disable the products found infringing.


If product "A" were a byproduct of item "B" then under federal regulations project "C" would come under scrutiny for ex parte factorum relation to elements "X" and "Y". This would inevitably lead to a release of product "Z" in a beta phase....

It's a fabulous way of phrasing a great deal of legal jargon, but personally I think you people watch WAY too much JAG... This court case is nothing but Tivo puffing itself up like a blowfish and E* poking at it with a stick. Just wait until the bloody hearing rebuttals are published already, and save 200 more pages/posts.


----------



## phrelin

jacmyoung said:


> Dependence on case law is particularly important in a contempt setting. And this case is no different than any other cases on the contempt issues.


The only solution is the movement of money from the infringer to the plaintiff. The contempt over acts not performed setting makes no sense and the case law debate proves it. It would have been so simple. A simple ruling, pay $1.25 a day per box in use to plaintiff, plus $1.25 per day per box fine for the criminal act of stealing, the latter to the court placed into escrow during appeal. Ordering an act like turning the boxes off was an illogical solution and has led to this whole contempt debate.


> The only reason in the Footprint2.0 case the infringer was successful to eventually get out of a contempt and sign a cross licensing agreement with the patentee was because it had the resourses to endure the court battles.


And this is why it has to be movement of money as immediate as possible without complications. IMHO the Judge and the attorneys are representing an idea that can never work in the technological setting. By the time the trial is over, it is already too late unless money immediately moves.

To tech types the theft of your technology may feel like someone stole your art much like it would feel to an artist, but patents and copyrights are about money not about feelings. Let's get money moving here.

Edit: And I mean moving to the plaintiff, not to law firms and the courts.


----------



## Greg Bimson

Zero327 said:


> It's a fabulous way of phrasing a great deal of legal jargon, but personally I think you people watch WAY too much JAG... This court case is nothing but Tivo puffing itself up like a blowfish and E* poking at it with a stick. Just wait until the bloody hearing rebuttals are published already, and save 200 more pages/posts.


And too bad you have a vested interest in DISH/SATS. Alas, the reverse is true.

Receiving over $100 million from the "poking it with a stick" party is far from anyone "puffing itself up like a blowfish".

Then again, I'm simply rebutting those that are puffing themselves "up like a blowfish". Just call me the voice of reason. :grin:


----------



## Curtis52

KSM told the District Court that there was no reason to look at infringement because the second product was really the same as the first product and there was no reason to look at infringement. The injunction didn't even mention infringement as something to avoid. The injunction just said to stop using or making fasteners of the type identified or anything similar. The district court went along with them and that's where the trouble started.

The appeals court disagreed saying that infringement was at the root of the injunction even though it wasn't mentioned and that infringement had to be looked at.



> "Under the standard we conclude is appropriate, the judgment must be set aside as a matter of law because of the *refusal of the district court to consider whether the Jones ULTRA-LOK devices infringed* the claims of the '217 patent."


Infringement isn't mentioned in the DVR disable order either.


----------



## jacmyoung

Greg Bimson said:


> Au contraire. I did mention it. Quickly.Incorrect. On the issue of the "B" products, the infringer was found in contempt. The issue was the "C" products, and the fact that Safety 1st's records had an issue dealing with said model number....


Not true, go back and read those quotes again, there was no "C" product, the products on the shelves were precisely as the injunction named, "B" products. The infringer did try to send a notice in the mail to the stores and give those "B" products a slightly different model #, but in the stores, the "B" products were still "B" products, the same packaging, the same name, the same model, and the same record on the registers.

The only reason the infringer was not in contempt was because the patentee failed to prove with clear and convincing evidence those "B" products with that modified part still infringed, no other reason at all, just the modification of that part alone.


----------



## jacmyoung

STDog said:


> Nothing wrong with case law.
> 
> The big problem is the cases take too long. This should have been done in 6 month, not years. Money for the courts isn't the issue, it's the system.


Of course it is the money issue, why do you think it took so long for Judge Folsom to settle the argument now? It could be resolved a few days after 5/30, but because of his schedule, it is now possibly in November.



> Also a problem is that those deciding the cases (judges and juries) have little or no knowledge of the subject matter (same problem at the PTO).


If so all cases are similar, not just in the software field. A case involving child abuse for example can have a great deal of medical and psychological advanced expert infromation much more foreign to average persons, are you to say we should get rid of the jury system all together?



> No way the average Joe on a jury has a clue about the technical details when deciding infringement. So the case isn't decided on technical details, but on which lawyer tells the best tale.


It was decided on the facts and the technical details, did you read the court docs? If not I suggest at least read the appeals court opinion in upholding some of the verdicts and reversing some, you will not be able to find any tale in there, all dry, tasteless facts and technical/legal jargons.



> Of course if the PTO were fixed (and most patents granted over the last 20 years were reexamined/thrown out) case like this wouldn't be in front of juries.
> 
> Rest assured juries in technical case are not peers. Peers would be engineers from other similar companies and fields.


What is your proposal for fixing? Nobody can sue the others on patent infringement?

I think the old patent system needs reformed no doubt, the patents are granted for a long time period because back about 100 years ago it took that much time for the next guy to wake up from his booze to even able to come up with something new again, today things can change in a matter of months, for the arts that obviously can change and advance in a much faster pace, the time of granting a patent right should be cut back, say only half of the years. That will be a good start.


----------



## scooper

One partial solution for the PTO - hire more engineers and fewer lawyers.


----------



## jacmyoung

scooper said:


> One partial solution for the PTO - hire more engineers and fewer lawyers.


Have you been sitting with a room full of engineers that work for the same company and with a common cause? Do you know how difficult to have those opinionated and argumentitive SOBs to agree on anything?

Have you been sitting with a room full of engineers that work for different companies who have different agendas?

The reason why folks not familiar with the art are often chosen is precsely because they have not already formed an opinion and are more willing to look at the facts.

You only need to come here to know, most of us here are more technically familiar with the law, the DVR patent and every dedtail of this case, after two years and 10,000 posts are we any closer in reaching a verdict?


----------



## Ergan's Toupe

James Long said:


> And those cases go to the core of Tivo's argument ... it doesn't matter if an injunction is fair: it must be followed. Otherwise, it is contempt of the court.


If I'm reading this correctly, E* is admitting that the injunction is "fair". If Folsom rules contempt what exactly is E* going to appeal?

MR. MCELHINNY: THE LAST THING THAT I WANT TO ADDRESS IS THIS ARGUMENT ABOUT THE WALKER AND THE, YOU KNOW, YOU HAVE TO CHALLENGE THE LANGUAGE OF THE INJUNCTION. THAT'S A CIRCULAR, NONSENSICAL ARGUMENT. IN ORDER TO GET THERE, YOU HAVE TO READ YOUR ORIGINAL INJUNCTION AS HAVING ORDERED US TO TAKE ACTION AGAINST NONINFRINGING PRODUCTS. AND AS YOU KNOW FROM PAICE, *AS YOU KNOW DIRECTLY FROM THE FEDERAL CIRCUIT, DISTRICT COURTS CANNOT ENJOIN NONINFRINGING PRODUCTS. SO THERE WAS NOTHING ERRONEOUS ABOUT YOUR ORDER. YOUR ORDER WAS EXACTLY RIGHT. IT WAS WRITTEN EXACTLY AS THE FEDERAL CIRCUIT TELLS YOU TO DO IT TO ENJOIN THE USE OR THE CONTINUED USE OF INFRINGING PRODUCTS. *BUT WHAT KSM TEACHES IS YOU CAN MODIFY THOSE PRODUCTS SUCH AS THEY ARE NO LONGER INFRINGING, YOU ARE ENTITLED -- UNLESS IT'S A SHAM, YOU ARE ENTITLED TO A TRIAL ON THE QUESTION OF WHETHER THESE NEW PRODUCTS INFRINGE.


----------



## scooper

jacmyoung said:


> Have you been sitting with a room full of engineers that work for the same company and with a common cause? Do you know how difficult to have those opinionated and argumentitive SOBs to agree on anything?


Yes - it takes a strong opinionated SOB manager to get them off their duffs and DO something - and then the results are beautiful to look at 



jacmyoung said:


> Have you been sitting with a room full of engineers that work for different companies who have different agendas?


Again - BTDT - see above.



jacmyoung said:


> The reason why folks not familiar with the art are often chosen is precisely because they have not already formed an opinion and are more willing to look at the facts.
> 
> You only need to come here to know, most of us here are more technically familiar with the law, the DVR patent and every dedtail of this case, after two years and 10,000 posts are we any closer in reaching a verdict?


I don't agree with that - a jury of engineers / computer scientists would have looked at Tivo's patent and laughed their asses off that someone was trying to patent the basic workings of a computer. Even Microsoft hasn't been THAT arrogant - and they write operating systems.


----------



## Greg Bimson

jacmyoung said:


> Not true, go back and read those quotes again, there was no "C" product, the products on the shelves were precisely as the injunction named, "B" products. The infringer did try to send a notice in the mail to the stores and give those "B" products a slightly different model #, but in the stores, the "B" products were still "B" products, the same packaging, the same name, the same model, and the same record on the registers.
> 
> The only reason the infringer was not in contempt was because the patentee failed to prove with clear and convincing evidence those "B" products with that modified part still infringed, no other reason at all, just the modification of that part alone.


Yet no source.


> Safety 1st explains that it appended a revision letter to the base model numbers, rather than change the base model numbers themselves, to indicate Bouncenettes with the redesigned harness: 43002B became 43002C rather than, hypothetically, 43003. The problem is that certain of Safety 1st's sales records did not reflect the change in revision letter. This ambiguity in Safety 1st's recordkeeping appears careless in the face of the Injunction.2 Despite Safety 1st's less-than-ideal recordkeeping, however, Fisher-Price's evidence of actual contemptuous Bouncenette sales falls short of the requisite standard. Fisher


Of course, I have a source to back up my assertion.


----------



## James Long

Zero327 said:


> Just wait until the bloody hearing rebuttals are published already, and save 200 more pages/posts.


While I agree with the basic sentiment of reporting and waiting without a lot of speculation, there are no "hearing rebuttals" to be published. The next action in the case (in Texas) is the Judge's ruling ... which may be by the end of the month or may be in November.

Delaware needs to reschedule the hearing that the judge canceled last week.
The Supreme Court needs to decide if they will touch the appeals verdict at all.
We're just chewing the fat while we wait (and wait, and wait).


----------



## Ergan's Toupe

scooper said:


> Even Microsoft hasn't been THAT arrogant - and they write operating systems.


You do know that Microsoft stole Apple's operating system, don't you?


----------



## HobbyTalk

While off topic, MS licensed the ideas from the Mac/Lisa OS. Please do your research.


----------



## Ergan's Toupe

HobbyTalk said:


> While off topic, MS licensed the ideas from the Mac/Lisa OS. Please do your research.


OT: but kind of not when talking about valid patents.

http://lowendmac.com/orchard/06/apple-vs-microsoft.html


----------



## aquaman67

Didn't the idea of GUIs (Graphic User Interface) come from Mac?

I remember typing in DOS commands.

C:/dir/p

C:/cd

LOL!


----------



## jacmyoung

Greg Bimson said:


> Yet no source.Of course, I have a source to back up my assertion.


I am not going to go back and quote your own case for you the 3rd time, if you don't believe me that's fine.


----------



## Greg Bimson

jacmyoung said:


> I am not going to go back and quote your own case for you the 3rd time, if you don't believe me that's fine.


Declarative statement, saying what you will or will not do.


jacmyoung said:


> Not true, go back and read those quotes again, there was no "C" product, the products on the shelves were precisely as the injunction named, "B" products.


Declarative statement.


> Safety 1st explains that it appended a revision letter to the base model numbers, rather than change the base model numbers themselves, to indicate Bouncenettes with the redesigned harness: 43002B became 43002C rather than, hypothetically, 43003. Fisher-Price


Declarative statement from the court decision.

The court states there was a "C" product. jacmyoung states there wasn't.

I report, you decide which one is the fallacy.


----------



## jacmyoung

scooper said:


> Yes - it takes a strong opinionated SOB manager to get them off their duffs and DO something - and then the results are beautiful to look at
> 
> Again - BTDT - see above.


As I recall I read somewhere a government did just that, the strong man collected what they thought the best of the engineers and scientists, not just from their own but from the countries they had just defeated, and had them get together off their butts and worked and worked, and then the results were beautiful, they got ahead in the space progarm, among a few other things. Of course when the engineers and scientists got a little too much beyond control, they were excecuted or sent to remote regions so they would never be seen again.

After that the results weren't so beautiful anymore



> I don't agree with that - a jury of engineers / computer scientists would have looked at Tivo's patent and laughed their asses off that someone was trying to patent the basic workings of a computer. Even Microsoft hasn't been THAT arrogant - and they write operating systems.


DISH's engineers laughed at TiVo's patent and said what was that about, we would just use that idea, screw them.

When DISH's new patent application was filed, the TiVo engineers looked at it, and laughed at it, what the @#$$ was that about? It was impossible, as Rogers said they told him.

Don't ever underestimate wise persons' ability to be total dickheads, it will be worse than you can ever imagine


----------



## jacmyoung

Greg Bimson said:


> Declarative statement, saying what you will or will not do.Declarative statement.Declarative statement from the court decision.
> 
> The court states there was a "C" product. jacmyoung states there wasn't.
> 
> I report, you decide which one is the fallacy.


You simply ignore or conveniently forget what we had talked about before.

I am not going to waste my time, I had quoted for you twice before under the same request of yours, not the third time. You always forget after a few days and start it all over.


----------



## HobbyTalk

Ergan's Toupe;1792988 said:


> OT: but kind of not when talking about valid patents.
> 
> http://lowendmac.com/orchard/06/apple-vs-microsoft.html


We are not talking patents in the MS/Apple case but copyright, which has nothing to do with the Dish/TiVo case.

http://www.macobserver.com/columns/thebackpage/2004/20040708.shtml


----------



## HobbyTalk

aquaman67 said:


> Didn't the idea of GUIs (Graphic User Interface) come from Mac?


It came from Xerox


----------



## Steve H

I just started reading this thread and don't understand it at all. In plain English does this mead we are going to loose or DVR's?


----------



## scooper

We got some time before that will be determined. If you're worried about the next 6 months to a year - don't be. Even if Echostar has to disable the DVR functions, you may end up with a replacement DVR.


----------



## James Long

jacmyoung said:


> I am not going to waste my time, I had quoted for you twice before under the same request of yours, not the third time. You always forget after a few days and start it all over.


We've heard that before ...


jacmyoung said:


> I hope you do not disagree with me on that, if you do stop reading further, *I give up*.
> 
> I hope you can see the parrallel in my point, if not, *I give up* again.


I understand what Greg posted ... it seems that you're intentionally misreading it. All too common. Perhaps it is time to read more?


----------



## James Long

Steve H said:


> I just started reading this thread and don't understand it at all. In plain English does this mead we are going to loose or DVR's?


Don't worry about your DVR. It will be front page news on this site if there is any real threat of any shutdown (and based on your signature, you have a ViP-622 which isn't in question).


----------



## Steve H

James Long said:


> Don't worry about your DVR. It will be front page news on this site if there is any real threat of any shutdown (and based on your signature, you have a ViP-622 which isn't in question).


Thanks James, I heard a while back that the "older" DVR's were the one being targeted. Is that the case?


----------



## James Long

Steve H said:


> Thanks James, I heard a while back that the "older" DVR's were the one being targeted. Is that the case?


The verdict rendered and the injunction written names the DP-501, 508, 510, 522, 625, 721, 921 and 942 models. Under the injunction DISH is not permitted to sell similar receivers - Tivo would love to call the ViP series similar enough to have them blocked as well. Not an easy task.

The "disable the DVR functionality" part of the injunction ONLY applies to the eight listed models ... worst case if DISH loses those models will need to be shut down. But there is no sign of that shut down actually happening.


----------



## Steve H

Thanks for the info.


----------



## Mainer_ayah

Steve H said:


> I just started reading this thread and don't understand it at all. In plain English does this mead we are going to loose or DVR's?


Be afraid, be very afraid!


----------



## jacmyoung

James Long said:


> We've heard that before ...
> 
> I understand what Greg posted ... it seems that you're intentionally misreading it. All too common. Perhaps it is time to read more?


Talk about trying to mislead people, by the use of "C" as appended model # to confuse the issue:

http://depatentlaw.morrisjames.com/01 051 193.pdf

"On August 28, 2003, on Fisher-Price's motion, the court entered a permanent injunction(the "Injunction") prohibiting Safety 1st from "making, using, offering for sale, selling, licensing, importing, or otherwise distributing in the United States the following products: (a) the '2-n-1' *Bouncenette*, including model numbers 43002, 43002A, 43006, 43006A, 25006, and 25105; and (b) the Magic Motion, model number 43003." (D.I. 354.) The Injunction also required Safety 1st to "make every reasonable effort possible to retrieve from their major retail customers infringing products including the above-listed specifically identified products that are still in the possession of those customers." "

"With respect to Bouncenette sales, Fisher-Price asserts that Safety 1st has failed to show that its post-Injunction Bouncenette sales were not in violation of the Injunction. Safety 1st counters that, while it sold Bouncenettes after the Injunction's entry bearing the proscribed base model numbers, all of those Bouncenettes had a new, non-infringing harness design that Fisher-Price has not accused of infringement. Safety 1st explains that it appended a revision letter to the base model numbers, rather than change the base model numbers themselves, to indicate Bouncenettes with the redesigned harness: 43002B became 43002C rather than, hypothetically, 43003. The problem is that certain of Safety 1st's sales records did not reflect the change in revision letter. This ambiguity in Safety 1st's recordkeeping appears careless in the face of the Injunction.2 Despite Safety 1st's less-than-ideal recordkeeping, however, Fisher-Price's evidence of actual contemptuous Bouncenette sales falls short of the requisite standard. *The court finds that Fisher-Price has not established, by clear and convincing evidence, that Safety 1st violated the Injunction with respect to Bouncenette sales.*

Those *Bouncenetee* products were allowed despite the order that enjoined them.

The court ruled on the "Bouncenette" products, which were enjoined. Greg tried to use the appended letters "B" and "C" to mislead.

The decision was about the adjudicated Bouncenette products, and the order to require that they be pulled off the shelves, and stopped from seling.

The only thing Safety 1st did was to claim there was this modified part already put in those products before the injunction went in full force. The "B" and "C" letter at the end of the model #s were immaterial, the court did not render its decision on these two letters.

The decision that Safety 1st could continue to sell the Bouncentte products was based on the fact the patentee failed to prove with clear and convincing evidence the Bouncenette products still infringed. No more no less.

Of course Gred may continue to argue, but those Bouncenette products were not sold already. But that is again trying to mislead people. In this case it was those yet-sold Bouncenette products that had been adjudicated to have infringed, and were ordered to be pulled off the shelves, and not been sold, and yet the enjoined products were allowed to be sold again after the patentee failed to prove with clear and convincing evidence those same Bouncenette products still infringed.

Remember mere change of model # will never get the infringer out of a contempt, because name change is only colorable. Insisting that the letters "B" and "C" appended the model #s were the reason behind a no contempt, is a total misunderstanding of the standards established in the patent cases.


----------



## nobody99

jacmyoung, really, seriously, please pay attention:



> while it *sold* Bouncenettes after the Injunction's entry bearing the proscribed base model numbers all of those Bouncenettes had a new, non-infringing harness design that Fisher-Price has not accused of infringement


New sales. New sales. New sales.

The hearing on 9/4 was about already-sold, already-accused, already-adjudicated, already-appealed products that are already in customers' homes.

We will have the exact same situation in this case once Judge Folsom reaches a decision on the 9/4 hearing. TiVo will undoubtedly file a motion for contempt on continuing sales of the eight-named DVRS. Here, maybe this will make it easy for you. Let's change just a couple of words in your example so it applies to DISH:



modified said:


> while it *sold* [strike]Bouncenettes[/strike] DVRs after the Injunction's entry bearing the proscribed base model numbers all of those [strike]Bouncenettes[/strike] DVRS had a new, non-infringing [strike]harness design[/strike] software that [strike]Fisher-Price[/strike] TiVo has not accused of infringement


You may as well have cited a case where Mrs. Jones sued Mrs. Johnson for stealing her apple pie recipe. It has absolutely no bearing on the 9/4 hearing.


----------



## jacmyoung

I suppose Greg now agrees that had DISH mailed out new model # stickers to all the 50X...DVRs users and asked them to cover the old stickers with this new one with a new model #, DISH would have been free of contempt.

I hope that is not what you are trying to tell us. Name change has never got an infringer out of contempt, for all the cases I read, because such change is only colorably and in *bad faith*.

Safety 1st avoided the contempt charge on the Buncenetee products because of that modified hardness part, not because of the change of the letter from "B" to "C".


----------



## jacmyoung

nobody99 said:


> jacmyoung, really, seriously, please pay attention:
> 
> New sales. New sales. New sales.
> 
> The hearing on 9/4 was about already-sold, already-accused, already-adjudicated, already-appealed products that are already in customers' homes.
> 
> We will have the exact same situation in this case once Judge Folsom reaches a decision on the 9/4 hearing. TiVo will undoubtedly file a motion for contempt on continuing sales of the eight-named DVRS. Here, maybe this will make it easy for you. Let's change just a couple of words in your example so it applies to DISH:
> 
> You may as well have cited a case where Mrs. Jones sued Mrs. Johnson for stealing her apple pie recipe. It has absolutely no bearing on the 9/4 hearing.


You are too late, the injunction was prohibiting just that, the "new sales" of the Bouncenette products. The "new sales" were allowed to continue because Safety 1st claimed in those "new sales" Bouncenette products there was this modified part.

I have no doubt Greg understand this point, same as when Curtis52 argued with Greg on the KSM case, why KSM applied to all contempt cases?

It has nother to do with a "new product", the "new product" in KSM, similarly to the "new sales" in Safety 1st, were enjoined by the orders.

But due to modifications, the courts said nope, the patentees must prove with clear and convincing evidence those *enjoined products* (new products or not, new sales or not, in the end users' hands or not) still infringe.


----------



## James Long

jacmyoung said:


> Talk about trying to mislead people, by the use of "C" as appended model # to confuse the issue:


Greg refered to the products in the most accurate way possible ... by the terms used in the case. Just because you didn't understand doesn't make Greg wrong. 

The Bouncenettes that infringed were 43002*A*. The new non-adjudicated (and non-infringing) products were 43002*C*. The enjoined products happened to be 43002A. (No word on if *B* actually infringed ... I'm assuming they did as the court used B vs C as infinging vs non-infringing. B infringing doesn't seem to be disputed.)


> The "B" and "C" letter at the end of the model #s were immaterial, the court did not render its decision on these two letters.


The court used B vs C to differentiate the products ... for example, to be able to call one product Thermal-Lock and another Ultra-Lok for a matter of comparison. It is obvious (and Greg was not claiming otherwise) that changing the letter didn't change the product. But it did allow the court to call one product by one name and the new product by a new name.

No such help in Tivo vs Echostar. No new names.


----------



## Greg Bimson

jacmyoung said:


> Those Bouncenetee products were allowed despite the order that enjoined them.





> "On August 28, 2003, on Fisher-Price's motion, the court entered a permanent injunction(the "Injunction") prohibiting Safety 1st from "making, using, offering for sale, selling, licensing, importing, or otherwise distributing in the United States the following products: *(a) the '2-n-1' Bouncenette, including model numbers 43002, 43002A, 43006, 43006A, 25006, and 25105*... Fisher-Price





> Safety 1st explains that it appended a revision letter to the base model numbers, rather than change the base model numbers themselves, to indicate *Bouncenettes with the redesigned harness: 43002B became 43002C* rather than, hypothetically, 43003.





jacmyoung said:


> The decision was about the adjudicated Bouncenette products, and the order to require that they be pulled off the shelves, and stopped from seling.
> 
> The only thing Safety 1st did was to claim there was this modified part already put in those products before the injunction went in full force. The "B" and "C" letter at the end of the model #s were immaterial, the court did not render its decision on these two letters.


The "C" letter at the end of the model number was to designate the Bouncenette product with the new harness. Model 43002C was never adjudicated, and therefore, never subject to the injunction. However, because Safety 1st had some issues reflecting the sales correctly with the new part number, it was why Fisher-Price attempted a motion for contempt, for continuing infringement.

And as always, when it comes to contempt accusing sales of an infringing product, a redesign must be evaluated for infringement and colorable difference.


jacmyoung said:


> In this case it was those yet-sold Bouncenette products that had been adjudicated to have infringed, and were ordered not been sold, and yet the enjoined products were allowed to be sold again after the patentee failed to prove with clear and convincing evidence those same Bouncenette products still infringed.


Talk about misleading. Model 43002C, which was model 43002B but with a redesigned harness, was never adjudicated, and therefore, never subject to the injunction.


----------



## James Long

jacmyoung said:


> I suppose Greg now agrees that had DISH mailed out new model # stickers to all the 50X...DVRs users and asked them to cover the old stickers with this new one with a new model #, DISH would have been free of contempt.


Still making false claims about other people's views? Wasn't it YOU who was pushing for DISH to mail out stickers changing the model numbers?


----------



## Greg Bimson

> Posted by jacmyoung:
> 
> But due to modifications, the courts said nope, the patentees must prove with clear and convincing evidence those *enjoined products* (new products or not, new sales or not, in the end users' hands or not) still infringe.


That is not true in the Fisher-Price case. That is somewhat true in the StarBrite case.

The enjoining of sales of a product is based upon the infringement. Remove the infringement from the product or process, and you have successfully designed-around the patent, *no matter what the product is named*.

However, infringing products already sold suffer a different fate. From what I can tell, until NOW, no one has ever attempted to use KSM on a product adjudged as an infringement. So this will be very precedential if DISH/SATS can avoid contempt.


----------



## Greg Bimson

Here's one to wrap an argument around:

XYZ company's device is found to infringe a patent from 123 company.
XYZ then downloads new software to the device.
XYZ argues that a disable order to the devices in end users homes should not apply to the infringing device because they modified it.

However, in this case XYZ and 123 admit that there is more than a colorable difference in the way the product operates. The twist is that XYZ ends up being forced to admit infringement is still present in the device.

Those of you complaining about the court system need to wrap your head around this:

Device found infringing; injunction issued to disable infringing products at end users.
Injunction stayed pending appeal; modification created to possibly avoid infringement.
Injunction goes live and infringer claims modification trumps the disable language.
*Court agrees and new suit set to test infringement on devices already adjudged as infringements*.

Device found infringing; injunction issued to disable infringing products at end users.
Injunction stayed pending appeal; modification created to possibly avoid infringement.
Injunction goes live and infringer claims modification trumps the disable language.
*Court agrees and new suit set to test infringement on devices already adjudged as infringements*.

Device found infringing; injunction issued to disable infringing products at end users.
Injunction stayed pending appeal; modification created to possibly avoid infringement.
Injunction goes live and infringer claims modification trumps the disable language.
*Court agrees and new suit set to test infringement on devices already adjudged as infringements*.

Device found infringing; injunction issued to disable infringing products at end users.
Injunction stayed pending appeal; modification created to possibly avoid infringement.
Injunction goes live and infringer claims modification trumps the disable language.
*Court agrees and new suit set to test infringement on devices already adjudged as infringements*.

Device found infringing; injunction issued to disable infringing products at end users.
Injunction stayed pending appeal; modification created to possibly avoid infringement.
Injunction goes live and infringer claims modification trumps the disable language.
*Court agrees and new suit set to test infringement on devices already adjudged as infringements*.

Sorry about the duplicates, *but this is what you are asking of the broken court system*, to break it some more.

If DISH/SATS informed Judge Folsom of the workaround, this would be much easier to swallow. Then again, if the infringement could not be removed from the adjudicated devices, that would be reason enough not to go to Judge Folsom.


----------



## Curtis52

Greg Bimson said:


> From what I can tell, until NOW, no one has ever attempted to use KSM on a product adjudged as an infringement. So this will be very precedential if DISH/SATS can avoid contempt.


If there is more than a colorable difference, they aren't legally the same product.

On a related note, I've never heard of a civil rights case being used in a patent lawsuit. That seems precedential to me.


----------



## Ergan's Toupe

James Long said:


> Still making false claims about other people's views? Wasn't it YOU who was pushing for DISH to mail out stickers changing the model numbers?


<< crickets >>

:grin:


----------



## James Long

Curtis52 said:


> On a related note, I've never heard of a civil rights case being used in a patent lawsuit. That seems precedential to me.


It is when you look at the roots of the case ... but at the end of the day Walker vs Birmingham and the currently pending Motion for Contempt are both "contempt of an injunction" cases. It doesn't matter that the injunction in one case was a civil rights issue and the injunction in the other case is a patent issue ... the overall problem is that the party refused to follow a legitimate order of the court.

It could be argued (and it was) that the injunction in Walker wasn't legitimate yet the contempt decision stood up to the test. Contempt of a court's order.

I'm surprised Walker has not been trotted out more often.


----------



## nobody99

Curtis52 said:


> If there is more than a colorable difference, they aren't legally the same product.
> 
> On a related note, I've never heard of a civil rights case being used in a patent lawsuit. That seems precedential to me.


Glad to see that jacmyoung isn't the only one making stuff up.


----------



## Greg Bimson

Curtis52 said:


> On a related note, I've never heard of a civil rights case being used in a patent lawsuit.


What patent lawsuit? The patent lawsuit has already been decided.


James Long said:


> It could be argued (and it was) that the injunction in Walker wasn't legitimate yet the contempt decision stood up to the test. Contempt of a court's order.
> 
> I'm surprised Walker has not been trotted out more often.


Well, let's think about it in context...

Accuse an infringer of producing and selling an infringing product, the accused product must be evaluated. That is why KSM is ALWAYS cited.

There are very few contempt cases dealing with a product already adjudged to infringe.


----------



## Curtis52

Greg Bimson said:


> There are very few contempt cases dealing with a product already adjudged to infringe.


It happens all the time. StarBrite was about a product already judged to infringe. At least that's what the plaintiff said. KSM was about a product already adjudicated as infringing. At least that's what the plaintiff said. It sounds familiar.


----------



## scooper

Well - have there ever been other suits where infringing products already placed with endusers could be disabled / modified by the infringer to be non-infringing any more ?

If no - then we are on new ground for which there is no precedent


----------



## Curtis52

scooper said:


> Well - have there ever been other suits where infringing products already placed with endusers could be disabled / modified by the infringer to be non-infringing any more ?
> 
> If no - then we are on new ground for which there is no precedent


Why draw an arbitrary line at that point? What possible difference could the physical location make?


----------



## James Long

Greg Bimson said:


> Well, let's think about it in context...
> 
> Accuse an infringer of producing and selling an infringing product, the accused product must be evaluated. That is why KSM is ALWAYS cited.


That's the next hearing ... at the moment Tivo isn't accusing DISH of producing and selling an infringing product. The Motion for Contempt claims DISH disobeyed an order of the court requiring DISH to disable the DVR functionality on existing products.

Does it matter if the product has been rendered non-infringing in another way? Did it matter that the injunction Walker et al faced ordered Walker and others to follow a law that was unconstitutional (and later proved so)? Following an order of the court is the issue.

While it is obvious that parties constantly disobey court orders and are even found not in contempt after their disobedience because of extenuating circumstances such a courtesy was not extended to Walker et al.

So the question remains, why isn't Walker trotted out more often? Has the application of Walker vs Birmingham failed when applied to other cases where a similarly just injunction was ignored instead of challenged through the court system?


----------



## nobody99

James Long said:


> Does it matter if the product has been rendered non-infringing in another way? Did it matter that the injunction Walker et al faced ordered Walker and others to follow a law that was unconstitutional (and later proved so)? Following an order of the court is the issue.


I'd suggest that the example I dug up (Novak) is even closer to this case. The order of contempt was found invalid but Novak was still found to have violated it and held in contempt _at the same hearing_.

There are a lot of other cases like this; in fact, it seems that following the court's orders is, as far as the court is concerned, more important than anything else.

To me, that means the only was DISH is _not_ found in contempt is if everyone has misconstrued his meaning about turning off the DVR functions.


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## James Long

scooper said:


> Well - have there ever been other suits where infringing products already placed with endusers could be disabled / modified by the infringer to be non-infringing any more ?


Yes. Footprint 2.0 (although the specific "as configured" wording was there that allowed a reconfiguration of the product).

IMHO: All of the elements are there for DISH to be found not in contempt of further infringement. The hang up is the contempt of the court's order. Someone brought up Walker vs Birmingham. Other than shouting "WE DON'T INFRINGE" DISH really has not countered the argument.

I look forward to seeing how Judge Folsom ignores a Supreme Court case to rule in DISH's favor. 

The easy answer for him would be to rule that DISH followed the spirit of the injunction and redefine disable to be something other than disabling writing television data to a hard drive. Have fun Judge Folsom!


----------



## Ergan's Toupe

James Long said:


> I look forward to seeing how Judge Folsom ignores a Supreme Court case to rule in DISH's favor.
> !


That's why he needs a couple of months to think about it. :grin:


----------



## Ergan's Toupe

James Long said:


> The easy answer for him would be to rule that DISH followed the spirit of the injunction and redefine disable to be something other than disabling writing television data to a hard drive. Have fun Judge Folsom!


Jedi mind trick?


----------



## Greg Bimson

> *Posted by scooper:*
> Well - have there ever been other suits where infringing products already placed with endusers could be disabled / modified by the infringer to be non-infringing any more ?
> 
> If no - then we are on new ground for which there is no precedent





Curtis52 said:


> Why draw an arbitrary line at that point? What possible difference could the physical location make?


Not _location_.

The line was drawn when the order was issued: all but 193K DVR's from the list of eight models found infringing. Those that were in the customer's hands were already found infringing; they aren't enjoined from sales, since they've been sold. And the physical location is in the injunction order. *It is as if there is a bright orange sticker that was labeled "Infringing Product" and placed on the receiver.* Modifying so that it no longer infringes most likely doesn't remove that sticker, as following the disable order is a modification that clearly no longer infringes AND keeps the sticker on (keeps the receiver in the scope of the injunction).

As to scooper's precedent question, there may be precedent because the receivers are modifiable in the field. However, the actual precedent is that because an order wasn't followed, the party is found in contempt.

And that is a reason why I believe the question of the new software and colorable difference will be held later, because the "judicial economy" would be simply finding out if the order was followed.


----------



## Curtis52

Greg Bimson said:


> Not _location_.
> 
> The line was drawn when the order was issued: all but 193K DVR's from the list of eight models found infringing. Those that were in the customer's hands were already found infringing; they aren't enjoined from sales, since they've been sold. And the physical location is in the injunction order. *It is as if there is a bright orange sticker that was labeled "Infringing Product" and placed on the receiver.* Modifying so that it no longer infringes most likely doesn't remove that sticker, as following the disable order is a modification that clearly no longer infringes AND keeps the sticker on (keeps the receiver in the scope of the injunction).


So, DVRs sitting in the warehouse could be modified and pass this imaginary hurdle. Warehouse... home... warehouse... home. It sure sounds like physical location to me. None of the patent laws or case histories make any distinction on where the modifications are allowed or not allowed nor should there be. They are allowed. Period.


----------



## Greg Bimson

Curtis52 said:


> None of the patent laws or case histories make any distinction on where the modifications are allowed or not allowed nor should there be.


That is an overly broad statement. The case histories have only ever been applied to "new" constructs once the injunction was in full force.

DISH/SATS is arguing, for the first time in front of the courts, that a product adjudciated to infringe need not follow an order to disable. The argument is, for the first time at a contempt proceeding, sold product adjudged as an infringement can be modified and therefore be out of scope of the injunction.

In order to make this true, the language in the injunction needs to be ridiculously twisted in order to make the theory stick. That is why DISH/SATS argument is that the injunction was correct and that the injunction is being followed. If DISH/SATS loses their interpretation of the injunction, they simply lose and the motion for contempt will be granted.

So it is DISH/SATS that needs a "first time" ruling to be in their favor, as current case law does make the distinction that any un-modified product follow an injunction. It is DISH/SATS asking for a "precedential" ruling in their favor.


----------



## nobody99

Curtis52 said:
 

> So, DVRs sitting in the warehouse could be modified and pass this imaginary hurdle. Warehouse... home... warehouse... home. It sure sounds like physical location to me. None of the patent laws or case histories make any distinction on where the modifications are allowed or not allowed nor should there be. They are allowed. Period.


No, they actually can't. The were also labeled with that orange sticker.

I really don't understand why this is so difficult for you. If it was already manufactured, it gets a bright orange sticker. So at the time of the decision, there were a fixed number of already-manufactured receivers that got stickers. That number never changes - let's say its 3.2 million. Most of them were already placed with customers, some were sitting in a warehouse. Nevertheless, they all get orange stickers.

Let's say that DISH changes the manufacturing process so that it loads new software directly on the hardware as it's being manufactured. It gets boxed up and labeled as DishPlayer 522a. TiVo would need to file a new contempt motion on these receivers, and they don't get an orange sticker. The "more than colorably different" test that jacmyoung loves to misquote comes into play. Lots of discovery comes into play. But these receivers would not be held in contempt until (and if) the determination was made that the new software was in fact more than colorably different.


----------



## Curtis52

Greg Bimson said:


> That is an overly broad statement. The case histories have only ever been applied to "new" constructs once the injunction was in full force.
> 
> DISH/SATS is arguing, for the first time in front of the courts, that a product adjudciated to infringe need not follow an order to disable. The argument is, for the first time at a contempt proceeding, sold product adjudged as an infringement can be modified and therefore be out of scope of the injunction.


It's the same legal principal as a plaintiff saying that a defendant is continuing to sell an enjoined product in violation of an injunction ordering them to stop. It happened in KSM and StarBrite. The rulings were that it depended on whether there was more than a colorable difference.


----------



## Greg Bimson

Curtis52 said:


> It's the same legal principal as a plaintiff saying that a defendant is continuing to sell an enjoined product in violation of an injunction ordering them to stop. It happened in KSM and StarBrite. The rulings were that it depended on whether there was more than a colorable difference.


Yet those cases only ever applied to enjoining sales of a product never before adjudged. The accusation by the patentee is always on a product being sold, and the motion is denied if the modification is more than colorably different

In this case, the disable order is attached to devices found to infringe. And TiVo is not accusing DISH/SATS of infringement. Infringement of those devices is not in question. The modification of those devices is, when there is an order stating they are to be disabled.

And again, modifying the infringing devices so they are disabled (and definitely not infringing) does not remove those devices from the scope of the injunction.

It's simple, really. If one does not apply KSM or StarBrite to adjudicated devices (as neither KSM nor StarBrite did), then contempt will be found.


----------



## James Long

nobody99 said:


> No, they actually can't. The were also labeled with that orange sticker.


True. That is the category of receiver DISH was trying to protect when they attempted to get the injunction limited to allow new DVR software on existing non-placed products. DISH did not prevail ... any manufactured product regardless of if it has been placed or not can be a "Infringing Product". (And the injunction SPECIFICALLY prohibits placement of these models without the DVR functionality disabled).


> Let's say that DISH changes the manufacturing process so that it loads new software directly on the hardware as it's being manufactured. It gets boxed up and labeled as DishPlayer 522a. TiVo would need to file a new contempt motion on these receivers, and they don't get an orange sticker.


Following the other cases, yes. A contempt motion based on the current injunction would be filed by Tivo claiming the 522a is either the same product or one only colorably different than one of the products listed in the injunction.


> But these receivers would not be held in contempt until (and if) the determination was made that the new software was in fact more than colorably different.


The 522a product _*could*_ be held in contempt if it is determined they are only colorably different. If the court rules that the 522a is more than colorably different than a 522 then a new trial would be needed to prove that they also infringe. It would be unlikely that the question of 'colorably different' would be resolved without determining infringement, unless the products were different enough (eg: 522 vs 622) that they were more different than the same.

"Only colorably different" must infringe, otherwise the new product is more than colorably different.


----------



## Curtis52

Greg Bimson said:


> Yet those cases only ever applied to enjoining sales of a product never before adjudged.


That's not what the plaintiffs said. The plaintiffs said that enjoined products were being sold in violation of the injunction. You are looking at the final outcome. If this case gets appealed, someone someday may be saying the same thing as what you are saying about this case .


----------



## CuriousMark

Curtis52,
Haven't some cases in the past required that infringing products be recalled and/or destroyed. Aren't these specific units as modified by the injunction to not function as DVRs be more comparable to destroyed or recalled infringing products than to new sales? 

First, have products in the hands of customers been recalled in past cases? If so, was there ever a case where these recalled parts were reworked into non-infringing configurations and resold? That seems like the only past history that would closely match what you are calling for here. The only difference being that the change was applied without the recall and reselling steps.

If they are more akin to destroyed products than new sales, it seems to me that contempt would have to be found for not having done the equivalent of demanded destruction.


----------



## jacmyoung

James Long said:



> Still making false claims about other people's views? Wasn't it YOU who was pushing for DISH to mail out stickers changing the model numbers?


In Safety 1st, the Bouncenette products were all enjoined.

On contempt, Safety 1st told the court but there were some Bouncenette products that had a modified part, BTW, we did send the stores a letter notifying them some of those Bouncenette products already on the shelves, and had a modified part, then should be called 43000C, or something like that. Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C. Safety 1st only told them in that letter a change was made after the injunction was in full force.

Now according to Greg that was why Safety 1st avoided a contempt.

So my question is, had DISH sent out a new model sticker to each of the DVR owners and had them slapped it on the DVR, would that have allowed DISH to avoid a contempt?

Let me answer it for you, no! No one may avoid a contempt by simply do a name or model # change, many infringers had tried such trick, and it never worked. Name change and model # change are only colorable, such modification is in bad faith.

The reason Safety 1st got away with a contempt was because of that modified hardness.

The reason DISH will avoid a contempt will be because of that modified software.

The reason the infringer in the StarBrite case avoided a contempt was because of that modified "internal formulation", despite the fact the products by their names were enjoinded.

In both safety 1st and StarBrite, the clear letter of the orders were violated. If one cannot accept that, then there is a difference of logic used here.

I hope no reasonable persons will continue to insist the clear letter of the orders in the Safety 1st and the StarBrite cases were not violated.

They both were violated, period, and yet neither of them were in contempt.

That is the bottomline, continue to find other excuses is not helpful because in front of us lies the same question, if DISH had violated the letter of the order, is there anyway to still avoid a contempt?

The above case law says yes, as long as you do not infringe anymore.

Not to mention in this case, the judge had clearly indicated the possibility that he could find DISH actually in complinace of his order. He kept asking TiVo's lawyer what if I did not find DISH in violation on the face? What did that leave you?

You think he was just playing with TiVo's lawyer for some fun? You think judges make assumptions that they don't think that have the possibility to be true in their court rooms all the time just to toy with the parties? For what? To make judges themsleves look bad and unfair?

How may the judge find DISH in compliance of the letter of the order you ask? Adopt DISH's interpretation of the order:

"The DVR functionalities" stated in the order, must be those under the old design, tried and found infringing during the trial.

"The DVR functionalities" stated in the order, can not possibly be construed as "any DVR functionalities" under any design, or under a new design.

And since DISH did disable the DVR functionalities under the old design, and replaced them with the DVR functionalities with the new design, the DVR functionalities under the new design must be tested by the colorable difference test.

Exactly the same way Safety 1st replaced a part in the *enjoined products*, and exactly the same way the infringer in the StarBrite case replaced the "internal formulation" in the *enjoined products*, DISH replaced the internal DVR functionalities of the *enjoined products*.


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## James Long

jacmyoung said:


> In Safety 1st, the Bouncenette products were all enjoined.


Liar liar pants on fire.  
"On August 28, 2003, on Fisher-Price's motion, the court entered a permanent injunction(the "Injunction") prohibiting Safety 1st from "making, using, offering for sale, selling, licensing, importing, or otherwise distributing in the United States the following products: *(a) the '2-n-1' Bouncenette, including model numbers 43002, 43002A, 43006, 43006A, 25006, and 25105...* Fisher-Price​The Bouncenettes were not ALL enjoined, only the specific models of Bouncenette were named. Just like in the Tivo vs Echostar injunction where not ALL DVRs were ordered disabled, only the specific models determined by the court (adjudicated) as being infringing.


jacmyoung said:


> ... or something like that.


The record is clear for those not guessing about the case.  


jacmyoung said:


> Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C. Safety 1st only told them in that letter a change was made after the injunction was in full force.
> 
> Now according to Greg that was why Safety 1st avoided a contempt.


Greg can speak and has spoken for himself. Those that have understood his words see where he points to the lack of infringement (a colorable difference) of the C products being the reason why contempt could be avoided.


jacmyoung said:


> No one may avoid a contempt by simply do a name or model # change, many infringers had tried such trick, and it never worked.


So why did you suggest relabling so many months ago? Playing devil's advocate? Just wanting an argument?


jacmyoung said:


> The reason DISH will avoid a contempt will be because of that modified software.


When the question becomes infringement, perhaps. But that's not the question in Judge Folsom's mind today. DISH flagrantly disregarded an order of his court. He either has to backpeddle and say that his injunction did not mean what it said or fall victim to the Jedi mind trick of "the DVRs were magically replaced by other DVRs in secret" without notifying the court until more than a year later.


jacmyoung said:


> I hope no reasonable persons will continue to insist the clear letter of the orders in the Safety 1st and the StarBrite cases were not violated.


I just wish one unreasonable person would note the difference in the injunctions and the Motion for Contempt that is pending.


jacmyoung said:


> They both were violated, period, and yet neither of them were in contempt.


BTW: Who said they were not in contempt? That could be another indicator of the outcome here.


----------



## Greg Bimson

jacmyoung said:


> On contempt, Safety 1st told the court but there were some Bouncenette products that had a modified part, BTW, we did send the stores a letter notifying them some of those Bouncenette products already on the shelves, and had a modified part, then should be called 43000C, or something like that. Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C. Safety 1st only told them in that letter a change was made after the injunction was in full force.





> "On August 28, 2003, on Fisher-Price's motion, the court entered a permanent injunction(the "Injunction") prohibiting Safety 1st from "making, using, offering for sale, selling, licensing, importing, or otherwise distributing in the United States the following products: (a) the '2-n-1' Bouncenette, including model numbers 43002, 43002A, 43006, 43006A, 25006, and 25105; and (b) the Magic Motion, model number 43003." (D.I. 354.) The Injunction also required Safety 1st to "make every reasonable effort possible to retrieve from their major retail customers infringing products including the above-listed specifically identified products that are still in the possession of those customers." "
> 
> "With respect to Bouncenette sales, Fisher-Price asserts that Safety 1st has failed to show that its post-Injunction Bouncenette sales were not in violation of the Injunction. Safety 1st counters that, while it sold Bouncenettes after the Injunction's entry bearing the proscribed base model numbers, all of those Bouncenettes had a new, non-infringing harness design that Fisher-Price has not accused of infringement. Safety 1st explains that it appended a revision letter to the base model numbers, rather than change the base model numbers themselves, to indicate Bouncenettes with the redesigned harness: 43002B became 43002C rather than, hypothetically, 43003. The problem is that certain of Safety 1st's sales records did not reflect the change in revision letter. This ambiguity in Safety 1st's recordkeeping appears careless in the face of the Injunction.2 Despite Safety 1st's less-than-ideal recordkeeping, however, Fisher-Price's evidence of actual contemptuous Bouncenette sales falls short of the requisite standard. The court finds that Fisher-Price has not established, by clear and convincing evidence, that Safety 1st violated the Injunction with respect to Bouncenette sales.
> 
> _Fisher-Price_


Still looking for:

"BTW, we did send the stores a letter notifying them some of those Bouncenette products already on the shelves, and had a modified part, then should be called 43000C, or something like that"

"Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C."

"Safety 1st only told them in that letter a change was made after the injunction was in full force."


jacmyoung said:


> Now according to Greg that was why Safety 1st avoided a contempt.





Greg Bimson said:


> The "C" letter at the end of the model number was to designate the Bouncenette product with the new harness. Model 43002C was never adjudicated, and therefore, never subject to the injunction.


The above is why Safety 1st avoided the contempt charge on the 43002C model. Not because of a simple letter change, but because the product was redesigned. It could have even been redesigned before the injunction was in full force and effect; the restraining of sales did not apply to that product.


----------



## jacmyoung

Greg Bimson said:


> ... Not because of a simple letter change, but because the product was redesigned. It could have even been redesigned before the injunction was in full force and effect; the restraining of sales did not apply to that product.


Why not? The order prohibited the sale of the Bouncenette products already on the shelves, and those products were in fact already on the shelves by the model #s named in the order.

Safety 1st simply told the stores after the order went into full force, that oh BTW some of those products had a modified part and should for now be called XXXXXC model.

Such change by Safety 1st was made after the order went into full force. According to you the infringer could not possibly do that to avoid a contempt, they had to first pull all the Bounecenette products off, then ask the court permission to restock the modified products.

Look Greg, I know there is no way you can accept any other outcome, and will stick to the end of your belief, that is fine. I have no problem you do that, and the judge's ruling will tell us who is right.

What you cannot, as a reasonable person, deny that in both StarBrite and the Safety 1st cases, a clear violation of the letter of the order existed. And due to modification and the patentees' failure to prove with clear and convincing evidence *the infringers still infringed at the time of the contempt proceedings*, there were no contempt.

So if you insist on the issue of violation on the face of the injunction, and on that alone, DISH must be found in contempt, then we have case law to prove you wrong. Finding all excuses why the other infringers got off free totally misses the point.

The point is, we have cases where infringers clearly violated the letter of the injunctions, and were not in contempt, pure and simple, regardless the background information.

So if your *only* beef with DISH is on violation of the letter of the injunction, and that alone, stop saying but DISH's background info is different than the other two.

No you may not argue on the background info, because your argument itself is based on one and one only, violation on the face, nothing else, you insisted that, you cannot conveniently use the background info when it suits you, in those two prior cases, then suddenly want to ask the court to totally disregard the background info and find DISH in contempt on the face, and on the face only.

Either the court must consider those cases's background info, including the one in front of us today, or the court does not. Can't have it both ways.

Therefore today, when you insist violation of the letter of the order is the only thing the court must consider, then I can offer you at least two prior cases in which violation of the letter of the order was clearly true, but the infringers were not in contempt.

What TiVo must do, as Judge Folsom asked, to provide case law to prove other wise, Tivo could not come up with anything, the best they did, as the judge stated, was that "C" case which TiVo said proved DISH should have asked to have the order modified first, if DISH disagreed with the letter of the order.

But again, DISH did not disagree with the letter of the order, DISH considered the order totally correct, based on their interpretation, and believe they are in full compliance of the order.

The judge will have to decide if he will go with the DISH's interpretation, or the TiVo's interpretation.

One other thing I can say, as you are familiar with, if two interpretations both have merits, then the court must go with the defendant's interpretation, because when an order can be reasonably interpreted in two different ways, an ambiguity exists, and when an ambiguity exists, the defendant, not the plaintiff, gets the benefit.

Could Charlie be wrong? Of course he could, but as each side bet on the outcome, one has to consider the odds, and given that Charlie is a poker player, he must have considered those odds, and now it is up to him to call or fold. But if I were him, I would definately call it, consider all the case law and the questions Judge Folsom asked of both parties' lawyers on 9/4.

Why, because it will be a safe bet, not only due to the case law, but the fact even if I lose on the ruling, I can still appeal, and the appeals court will have to agree with me, based on the uniform standards they have established themselves. It will not be the end of the game. In such a poker game scenario, it would be stupid not to call it.


----------



## James Long

jacmyoung said:


> Safety 1st simply told the stores after the order went into full force, that oh BTW some of those products had a modified part and should for now be called XXXXXC model.


Got proof of that statement? It isn't supported in the rulings we have to read. If you want the truth, read Greg's posts.


> What you cannot, as a reasonable person, deny that in both StarBrite and the Safety 1st cases, a clear violation of the letter of the order existed


No such "clear violation" existed. Both injunctions named specific products that were enjoined. Both contempt proceedings involved products that were NOT the same as the products that were enjoined. In both cases the products were differentiated by product name or product number and the new product was non-infringing.


> So if your *only* beef with DISH is on violation of the letter of the injunction, and that alone, stop saying but DISH's background info is different than the other two.


Yes Greg, stop posting the truth. You're making it hard for jacmyoung to win the argument.  


> Therefore today, when you insist violation of the letter of the order is the only thing the court must consider, then I can offer you at least two prior cases in which violation of the letter of the order was clearly true, but the infringers were not in contempt.


You can? Which cases? Certainly not Starbrite and Safety 1st.


> One other thing I can say, as you are familiar with, if two interpretations both have merits, then the court must go with the defendant's interpretation, because when an order can be reasonably interpreted in two different ways, an ambiguity exists, and when an ambiguity exists, the defendant, not the plaintiff, gets the benefit.


Is it reasonable to say "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data)" does not mean precisely that?

772 more words and no more understanding?


----------



## Greg Bimson

jacmyoung said:


> So if your only beef with DISH is on violation of the letter of the injunction, and that alone, stop saying but DISH's background info is different than the other two.
> 
> No you may not argue on the background info, because your argument itself is based on one and one only, violation on the face, nothing else, you insisted that, you cannot conveniently use the background info when it suits you, in those two prior cases, then suddenly want to ask the court to totally disregard the background info and find DISH in contempt on the face, and on the face only.
> 
> Either the court must consider those cases's background info, including the one in front of us today, or the court does not. Can't have it both ways.


Did someone make you thread police when I wasn't looking?

Of course Judge Folsom must _consider_ the arguments presented by DISH/SATS in their defense. However, that consideration could simply be that KSM is not the correct standard for this case.

So of course you can have it both ways:

First, TiVo accuses DISH/SATS of ignoring an injunction.
Second, DISH/SATS defends their position that the injunction does not apply because of a modification.
Third, TiVo is allowed to respond why DISH/SATS defense does not apply.

If it is good enough for the court to do this, then it is certainly good enough for me.


----------



## jacmyoung

Greg Bimson said:


> ...Second, DISH/SATS defends their position that the injunction does not apply because of a modification...


I hope you do understand this is the problem with TiVo and many of their followers, that insisting DISH said the order does not apply.

DISH never said the order did not apply, they said the order applied 100%, they told the judge that many times, that his order was 100% correct.

And DISH also told the judge they were in full compliance of his order.

Yet TiVo continued to allege that DISH did not like the wording of the order, that DISH disagreed with the order, but did not try to ask the judge to modify the order.

Because of such mischaracterization of DISH's position, when the judge asked TiVo what if I did not find DISH in violation of my order on its face? What did that leave you?

TiVo's lawyer was a deer caught on the headlight, could not come up with a proper case to respond, again as the judge said, the closest case TiVo came up with, only proved if the infringer disagreed with the order, they needed to seek a modification of the order during appeal. Not applicable in this case because DISH considered the order 100% correct.

TiVo came into 9/4 with the absolute convinction that DISH was in violation on the face of the order, and that alone would be enough to get a contempt ruling.

So when Judge Folsom asked what if I did not find DISH in violation on face of my order, they were totally unprepared to give an answer.

TiVo's such over confidence was not the first time. They were over confident they could get a infringement verdict on the hardware claims that they did not consider the infringement on the equivalents, only went with literal infringement, and ended up having the hardware verdicts overturned on appeal.

TiVo again did not think the new software mattered, that prima facie violation would be enough, so when DISH filed a new suit in DE, TiVo was totally unprepared, they were forced to accept DISH's new software claim and began to argue the new software colorable difference based on the DISH's evidence, in order to defeat DISH's DE suit. They did not have time to even consider if DISH's new softwarwe evidence should be challenged or not.

TiVo did not dispute the evidence, so now both parties have accepted the evidence, and Judge Folsom can rule on the evidence without any need to grant TiVo any more discovery on the new software evidence.


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## dfd

jacmyoung said:


> TiVo's such over confidence was not the first time. They were over confident they could get a infringement verdict on the hardware claims that they did not consider the infringement on the equivalents, only went with literal infringement, and ended up having the hardware verdicts overturned on appeal.


Overturnded <> Remanded.

This is why your arguments carry little weight. Words mean something. You cannot just go and make up your own definition and expect us to come along.


----------



## nobody99

> The court: Well, but I think you agree under the case law simply because there is the design around doesn't necessarily mean I cannot approach this subject on a contempt proceeding. You do admit that, do you not?
> 
> Mr. McElhinny: Uh --
> 
> The Court: Depends upon the extent of the design around.
> 
> Mr. McElhinny: It does, your honor.
> 
> ..more of Mr. McElhinny bumbling aimlessly...
> 
> Mr. McElhinny: ...And we think that your honor now has a sufficient record to say that the differences are substantial enough that it's not colorable.
> 
> The Court: What is in the record that would allow me to make that decision?
> 
> Mr. McElhinny: You have three things int the -- well, two at large. You have the opinions of counsel, which are substantial, and you have the declaration of Mr. Minnick, which lays out the nature of the designs.
> 
> The Court: I would be suprprised in this case if the other side doesn't disagree.


Based on this little exchange, I thing that Judge Folsom is setting up DISH to be in contempt until after a hearing that determines a more than colorable difference in the software (jacmyoung, save your breath, please).

I think that he will give them some period of time - say, 7 days, to disable DVR functions and then find them in contempt. He will schedule a hearing (hopefully three months out ) to determine the status of the new software.

This would actually make a lot of sense, because it would seperate products into three seperate categories:

1) Adjudicated products
2) Products merely colorably different
3) Products more than colorably different

KSM dealt specifically with #2 and #3. The were allowed to design around the patent and produce new product without fearing that they've disobeyed a court order.

In DISH's case, they probably have products in all three categories. But the 9/4 hearing dealt only with products in the first category.

Since they are already adjudicated, DISH doesn't get to act as its own judge + jury (and laughably trot out their three, er, two reasons why Judge Folsom can rule this way). In any event, none of that should matter - if the courts are going to allow design-around on already-adjudicated products, at the very least it should require court approval to allow those products off the hook.

So Judge Folsom comes out saying that they didn't follow his injunction, and he gives them 7 days. He schedules a hearing in three months to determine the differences with the new software. In the meantime, TiVo collects treble damages through that hearing (assuming they are more than colorably different) or jail time (if they are not more than colorably different)

Interestingly, even if they are more than colorably different, I think TiVo will get enhanced damages due to all the case law that allows a contempt finding even if the injunction was not correct (i.e., they had already installed non-infringing software). And since contempt fines in a civil case go to the injured party - TiVo gets to keep the contempt fines.

That's my new prediction (my previous prediction of settlement by September 11th is now out the window )


----------



## jacmyoung

dfd said:


> Overturnded <> Remanded.
> 
> This is why your arguments carry little weight. Words mean something. You cannot just go and make up your own definition and expect us to come along.


A decision overturned on appeal is usually remanded for reconsideration.

Did I ever ask you to come along?


----------



## Greg Bimson

Correct, dfd.


jamcyoung said:


> They were over confident they could get a infringement verdict on the hardware claims that they did not consider the infringement on the equivalents, only went with literal infringement, and ended up having the hardware verdicts overturned on appeal.


Let's see.

Judge Folsom instructed the jury that if they found literal infringement on the hardware claims, that there was no need to rule on the doctrine of equivalents.

So that has nothing to do with overconfidence by TiVo. The hardware claims were overturned because of Judge Folsom's instructions.


jacmyoung said:


> DISH never said the order did not apply, they said the order applied 100%, they told the judge that many times, that his order was 100% correct.
> 
> And DISH also told the judge they were in full compliance of his order.


Yet, this 4 September hearing was about whether or not DISH/SATS complied with the _spirit_ of the injunction. What was Judge Folsom's words on what 4 September was all about?


> ...whether Echostar should be held in contempt for its failure to disable the DVR functionality in the Infringing Products and for its placement of new infringing DVRs as urged by TiVo...


Right here Judge Folsom states that DISH/SATS failed to disable the DVR functionality in the Infringing Products.

Compliance with the disable order did not happen. And once again, as the argument is always pointed back on me, stop believing everything that DISH/SATS says.


----------



## nobody99

jacmyoung said:


> Did I ever ask you to come along?


That's a good point. You usually _demand_ we come along. (TiVo fans _must_ this or the Judge _must_ that)


----------



## jacmyoung

Greg Bimson said:


> Correct, dfd.Let's see.
> 
> Judge Folsom instructed the jury that if they found literal infringement on the hardware claims, that there was no need to rule on the doctrine of equivalents.


The reason for such instruction was TiVo did not seek a decision on infringement on the equivalents on the hardware, so the jury might not decide on equivalents. TiVo did seek decision on both literal and equivalents on the software, and I think because of that the software verdicts stood well.



> ...Yet, this 4 September hearing was about whether or not DISH/SATS complied with the _spirit_ of the injunction. What was Judge Folsom's words on what 4 September was all about?Right here Judge Folsom states that DISH/SATS failed to disable the DVR functionality in the Infringing Products.


Judge's "words" also said the design around discussion was not on 9/4's agenda. Last I checked design around was discussed in depth, judge was questioning Mr. Chu on KSM, on the issue of design around, the judge had trouble figuring out why TiVo dismissed KSM's design around concept.



> ...Compliance with the disable order did not happen. And once again, as the argument is always pointed back on me, stop believing everything that DISH/SATS says.


And stop believing everything TiVo says. Because if you do you will be like TiVo, when the judge asked, if I found DISH not in violation of my order on its face (meaning DISH was in compliance of the letter of my order), what did that leave you, you would have lost your words.

Again, why did you think judge even bothered to ask such question, if it was "not on his agenda?" Just to toy with TiVo? Just to make TiVo's lawyer look bad?


----------



## phrelin

jacmyoung said:


> Again, why did you think judge even bothered to ask such question, if it was "not on his agenda?" Just to toy with TiVo? Just to make TiVo's lawyer look bad?


Actually, I've seen judges do just that, even in Sacramento Superior Court where you apparently live.


----------



## dfd

jacmyoung said:


> A decision overturned on appeal is usually remanded for reconsideration.
> 
> Did I ever ask you to come along?


And that matters how? That is not the case here. Please cite your source for where the hardware claim was overturned and I'll concede it applies.

Isn't this a discussion forum where people are essentially debating points? My 'come along' was in reference to your points.

Reading your arguments reminds me of my 7th grade math teacher's lesson on geometry proofs. He said to look at the base assumptions very carefully. An incorrect assumption yields an invalid proof.

If you create facts out of whole cloth how can we be expected to follow along with anything you state after that?


----------



## nobody99

jacmyoung, if DISH had put in their briefs that "I have read of a talc powder called anti-monkey butt. This anti-monkey butt formula helps stop chafing, and we believe that if we sprinkle it on our DVRs, it would end infringement."

Do you think the judge would discuss it?

The very fact that something appears in DISH's filings means the judge _must_ talk about it. It doesn't mean he believes it for a second.



> And stop believing everything TiVo says


More marching orders from jacmyoung. Excellent.



> when the judge asked, if I found DISH not in violation of my order on its face (meaning DISH was in compliance of the letter of my order), what did that leave you, you would have lost your words


judge when the I meaning asked, if DISH in violation of not my on its (was DISH in of the of my ), what did that compliance leave you, you have your letter words would lost face found order

Someone set us up the bomb.


----------



## jacmyoung

Greg Bimson said:


> ...Right here Judge Folsom states that DISH/SATS failed to disable the DVR functionality in the Infringing Products.
> 
> Compliance with the disable order did not happen. And once again, as the argument is always pointed back on me, stop believing everything that DISH/SATS says.


Again total misinterpretation of what the judge said. The judge himselve said nothing in that order, he simply laid out what TiVo said, and what DISH said, and explained what would be discussed on 9/4, according to what TiVo asked, and what DISH responded.

But if you have read enough cases, judges do not have to follow the orders literally, because situations change, new evidence surfaces. Judges are human too, flexible in using their "wide latitude" to move things forward.

Let me use this judge's question again, if I found DISH not in violation on the face of my order (meaning if I found DISH in compliance of the letter of my order), what did that leave you?

According to you the judge would not have asked this question, wouldn't he? Because again "in his agenda" he never said he could possibly found DISH in compliance of the letter of his order, but he asked that question didn't he?

TiVo was in the same belief like many of you, not on agenda, not going to be asked. That is what I call over-confidence, and when you do that, you are unprepared when the judge ask you a question that is "not on his agenda".


----------



## jacmyoung

phrelin said:


> Actually, I've seen judges do just that, even in Sacramento Superior Court where you apparently live.


Of course the judges do that, because the possibilities exist. I have yet seen the judges asking questions that were totally irrelevant or have no possibility to be true.

That is not to say just because the judges ask those questions, they will rule that way, of course not.

The point is just because one thing is not on his agenda, does not mean he cannot discuss it, or he cannot rule on it.


----------



## jacmyoung

dfd said:


> And that matters how? That is not the case here. Please cite your source for where the hardware claim was overturned and I'll concede it applies.
> 
> Isn't this a discussion forum where people are essentially debating points? My 'come along' was in reference to your points.
> 
> Reading your arguments reminds me of my 7th grade math teacher's lesson on geometry proofs. He said to look at the base assumptions very carefully. An incorrect assumption yields an invalid proof.
> 
> If you create facts out of whole cloth how can we be expected to follow along with anything you state after that?


Yet you have not provided me with a single fact, the one you argued, overturned<>remanded, was already refuted by me.

Next? Offer your facts, rather rhetorics.


----------



## nobody99

jacmyoung said:


> Yet you have not provided me with a single fact. Offer your facts, rather rhetorics.


This is the single most blatant case of the pot calling the kettle black in the history of mankind. I am so proud to have been here to witness it <sniff>.

jacmyoung, you've outdone yourself.


----------



## dfd

jacmyoung said:


> Yet you have not provided me with a single fact, the one you argued, overturned<>remanded, was already refuted by me.
> 
> Next? Offer your facts, rather rhetorics.


FACT (from p. 23 of the United States Court of Appeals for the Federal Circuit decision):

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

Is your argument consistent with the above FACT?


----------



## dfd

jacmyoung said:


> Yet you have not provided me with a single fact, the one you argued, overturned<>remanded, was already refuted by me.
> 
> Next? Offer your facts, rather rhetorics.


I can't let it rest...

Please explain to me how you refute 'overturned <> remanded'.


----------



## Curtis52

> THE COURT: I WOULD LIKE TO ASK YOU, DO YOU AGREE
> THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT
> WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND, DO YOU
> CONCEDE THAT THAT'S NOT AN ISSUE, THAT IT SHOULD BE A DIRECT
> ACTION, OR IS THAT STILL A SUBJECT FOR THE COURT TO DETERMINE
> IF I CAN GO FORWARD ON A CONTEMPT ACTION TRYING TO DETERMINE
> IF THERE IS AN INFRINGEMENT, AND IF THERE IS THE APPROPRIATE
> DISTINCTION THAT WOULD ALLOW ME TO DO SO UNDER THE CASE LAW?
> ARE YOU ESSENTIALLY CONCEDING, AS MR. MCELHINNY SAYS, THAT
> WITH THE OPINION OF COUNSEL THAT HAS BEEN PROVIDED THAT
> PERHAPS THIS IS NOT AN ISSUE? IT'S A RATHER LONG QUESTION.


Judge Folsom is asking what Chu thinks is the proper course if he cannot find contempt without an infringement anaysis on the design around. He's asking whether TiVo agrees with Dish and their counsel's opinion of more than a colorable difference and if so wouldn't direct action (new/supplemental lawsuit) be required by case law as opposed to a new contempt hearing.

The judge wants to know what TiVo thinks will be the next step if he does not find Echostar in contempt on prima facie. Folsom tries again to get the answer shortly thereafter:


> THE COURT: AND IF I FIND NO, WHERE DO YOU THINK THAT
> LEAVES TIVO, THEN?


In other words, "are you going to file for contempt again on technical differences or are you going to file a direct action?"


----------



## Ergan's Toupe

jacmyoung said:


> Yet you have not provided me with a single fact.


Oh.....My......God..... :icon_lame


----------



## jacmyoung

Curtis52 said:


> ...In other words, "are you going to file for contempt again on technical differences or are you going to file a direct action?"


I agree with you in part.

A direct action IMHO is that the judge finds contempt or not based on the design around evidence, as the judge said based on the "extent of the design around".

The other option the judge asked Mr. Chu was what were you going to do in your view in terms of another contempt hearing, and Mr. Chu responded that they would bring up another discovery and contempt motion on the "new products", meaning the newer DVR models not on the list, such as the 622s and 722s.

So by that answer, Mr. Chu was practically conceding, as the judge pressed him to say, that if the judge makes a direct action on the DVRs on the list, TiVo would not again try to touch those DVRs on the list again, rather go after the newer models.


----------



## Greg Bimson

jacmyoung said:


> Of course the judges do that, because the possibilities exist. I have yet seen the judges asking questions that were totally irrelevant or have no possibility to be true.


The distants case?

Judge Dimitrouleas had to issue a show cause order to Fox Broadcasting Network to obtain answers requested by DISH and the rest of the settling broadcasters.

However, when the ruling came down, it was stated that the order was being issued because it was mandated from the Court of Appeals, and Judge Dimitrouleas could not ignore the mandate.

There was no use of asking any other questions, but that was dragged out for five months or so.


----------



## jacmyoung

dfd said:


> FACT (from p. 23 of the United States Court of Appeals for the Federal Circuit decision):
> 
> At several points, TiVo argues that even if this court were to overturn the jury's verdict of literal infringement, there would still be ample evidence of infringement under the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court's instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.
> 
> Is your argument consistent with the above FACT?


Your fact is wrong again. Yes TiVo in their filing along with DISH's appeal said even if...the equivalents should still be good enough to find infringement.

The problem, as the appeals court said, was TiVo should have filed a complaint on the equivalents basis during the trial, because TiVo did not, the jury was instructed to not decide on the equivalents.

And because there was no decision by the jury on the equivalents, the appeals court overturned the hardware verdict, after finding error in the jury's hardware verdict based on literal infringement.

So yes, the reason the hardware verdict were overturned was because TiVo failed to file a complaint on the equivalents basis, for the hardware claims that is.

TiVo did file complaints on both equivalents and literal, on the software claims, and got that right all the way through the appeal.


----------



## jacmyoung

Greg Bimson said:


> The distants case?
> 
> Judge Dimitrouleas had to issue a show cause order to Fox Broadcasting Network to obtain answers requested by DISH and the rest of the settling broadcasters.
> 
> However, when the ruling came down, it was stated that the order was being issued because it was mandated from the Court of Appeals, and Judge Dimitrouleas could not ignore the mandate.
> 
> There was no use of asking any other questions, but that was dragged out for five months or so.


There is no such mandate here.


----------



## Greg Bimson

This would be another case of missing complete sentences:


jacmyoung said:


> A direct action IMHO is that the judge finds contempt or not based on the design around evidence, as the judge said based on the "extent of the design around".





Judge Folsom said:


> I would like to ask you, do you agree that *assuming I feel I cannot find EchoStar in contempt without an infringement analysis on the design around,* do you concede that that's not an issue, that it should be a direct action, or is that still a subject for the court to determine if I can go forward on a contempt action trying to determine if there is an infringement, and if there is the appropriate distinction that would allow me to do so under the case law?


See that? No analysis of the design-around. If there is no analysis of the design-around and contempt is NOT granted, TiVo will then file contempt motions regarding the design-around on old receivers (because they must be evaluated) and the new ones (because they've never been evaluated).


----------



## Greg Bimson

jacmyoung said:


> Of course the judges do that, because the possibilities exist. I have yet seen the judges asking questions that were totally irrelevant or have no possibility to be true.





Greg Bimson said:


> Judge Dimitrouleas had to issue a show cause order to Fox Broadcasting Network to obtain answers requested by DISH and the rest of the settling broadcasters.
> 
> However, when the ruling came down, it was stated that the order was being issued because it was mandated from the Court of Appeals, and Judge Dimitrouleas could not ignore the mandate.
> 
> There was no use of asking any other questions, but that was dragged out for five months or so.





jacmyoung said:


> There is no such mandate here.


HOWEVER, that means Judge Dimitrouleas asked "questions that were totally irrelevant" because he knew he had to follow the mandate.

So judges ask questions that are totally irreleveant all the time.


----------



## Greg Bimson

jacmyoung said:


> So yes, the reason the hardware verdict were overturned was because TiVo failed to file a complaint on the equivalents basis, for the hardware claims that is.


File a complaint on the equivalents basis?

TiVo would file a complaint alleging infringement on specific claims. It is up to the judge to structure the construction claims and the jury to decide them. It is the jury that decides infringement, either literal or by equivalents, and it is the judge that directs the jury how to answer. In this case, Judge Folsom instructed the jury to disregard a finding of infringement by the doctrine of equivalents if they found literal infringement.

In other words, if the jury did not find literal infringement, then they would have ruled on a finding for infringement by the doctrine of equivalents.

No one files "I'd like to have a verdict based on infringement of the hardware only and I'd like a finding based on the doctrine of equivalents, please."


----------



## jacmyoung

Greg Bimson said:


> The distants case?
> 
> Judge Dimitrouleas had to issue a show cause order to Fox Broadcasting Network to obtain answers requested by DISH and the rest of the settling broadcasters.
> 
> However, when the ruling came down, it was stated that the order was being issued because it was mandated from the Court of Appeals, and Judge Dimitrouleas could not ignore the mandate.
> 
> There was no use of asking any other questions, but that was dragged out for five months or so.


For your distant networks case law to work in this case, it would have to be something like this:

The judge makes his ruling on the additional damages, say $100 million, but says he is not totally ready to rule on the contempt yet.

DISH appeals that the damages are too high, and at the same time argues the judge should have ruled on the contempt issue.

The appeals court says, oh yeah it to high, it should be $50 million, and BTW, our standards says DISH you are in contempt, because our standards never applied to the adjudicated products already at the hands of the end users, so we will remand the lower court to issue a finding of contempt.

In that case Judge Folsom will have to say, sorry, all the argument and questioning about KSM, the design around, all those were a waste of time, because here we have a mandate from the higher court, I will have to follow it.

But this is not the case at all today.


----------



## jacmyoung

Greg Bimson said:


> This would be another case of missing complete sentences:See that? No analysis of the design-around. If there is no analysis of the design-around and contempt is NOT granted, TiVo will then file contempt motions regarding the design-around on old receivers (because they must be evaluated) and the new ones (because they've never been evaluated).


When the judge asked "if this is not an issue?" He was not referring to the issue of the "design around", rather the Judge Ward (Dr. King) case, because this rather long question of the judge's followed TiVo lawyers' citing of the Dr. King's case.

The reason it was not about design around issue, as I said before, is you have to use some logic here. TiVo had argued all this time that design around should not be an issue, when it came to prima facie contempt.

So it would be illogical for the judge to ask TiVo's lawyer did you then concede the design around was not an issue. What were they to concede to? They argued on that point.

Had the judge asked DISH's lawyer that question, then the logic would follow through because it was DISH that continued to argue that the design around was an issue. So there would be something for them to concede to that it was not an issue anymore.

So the judge was asking if TiVo would concede that the Dr. King's case they cited would not be an issue, if he made a direct action ruling finding DISH not in contempt.


----------



## Curtis52

Jury instructions:


> In this case, TiVo alleges that EchoStar's 501, 508, 510, 522, 625, 721, 921, and 942 receivers infringe claims 1, 5, 21, 23, 31, 32, 36, 52 and 61 of U.S. Patent No. 6,233,389. It is your responsibility to determine whether or not TiVo has proven by a preponderance of the evidence that EchoStar has infringed any of the asserted claims of the patent in suit.
> 
> INFRINGEMENT - EVERY CLAIM ELEMENT MUST BE PRESENT, EITHER LITERALLY OR UNDER THE DOCTRINE OF EQUIVALENTS
> 
> In order to infringe a patent claim, a product must include every limitation of the claim. If EchoStar's products omit any one limitation recited in a claim, then you must find that EchoStar's has not infringed that claim. You must consider each of the asserted claims of the patent in suit separately.
> 
> A claim limitation may be present in an accused product in one of two ways, either literally or under what is known as the doctrine of equivalents. A claim limitation is literally present if it exists in the accused product just as it is described in the claim language, either as I have explained that language to you or, if I did not explain it, as you understand it.


There were not separate sets of instructions for hardware and software. Just one set of instructions.


----------



## jacmyoung

Greg Bimson said:


> File a complaint on the equivalents basis?
> 
> TiVo would file a complaint alleging infringement on specific claims. It is up to the judge to structure the construction claims and the jury to decide them. It is the jury that decides infringement, either literal or by equivalents, and it is the judge that directs the jury how to answer. In this case, Judge Folsom instructed the jury to disregard a finding of infringement by the doctrine of equivalents if they found literal infringement.
> 
> In other words, if the jury did not find literal infringement, then they would have ruled on a finding for infringement by the doctrine of equivalents.
> 
> No one files "I'd like to have a verdict based on infringement of the hardware only and I'd like a finding based on the doctrine of equivalents, please."


No you did not understand, TiVo filed complaint that the DISH hardware infringed on the basis of literal infringement, but they did not file complaint that the DISH hardware infringed on the basis of the equivalents. When TiVo did that, the judge was correct to instruct the jury when they decided on the hardware infringement issue, they had to use only the standards on literal infringement, but not to decide on the basis of the equivalents, because TiVo did not file its complaint on such basis.

TiVo did file complaints that the DISH software infringed, on both the literal and the equivalents basis.


----------



## jacmyoung

Curtis52 said:


> Jury instructions:
> 
> There were not separate sets of instructions for hardware and software. Just one set of instructions.


Why don't you cite where the judge instructed the jury not to rule on equivalents, if they ruled on literal?


----------



## Greg Bimson

I'M done. Again. I am arguing with someone that believes the patentee must file an infringement suit and *request* a ruling by the doctrine of equivalents, when it is something the judge instructs.


----------



## Curtis52

jacmyoung said:


> Why don't you cite where the judge instructed the jury not to rule on equivalents, if they ruled on literal?


"A claim limitation may be present in an accused product in one of two ways, either literally or under what is known as the doctrine of equivalents."


----------



## Ergan's Toupe

Greg Bimson said:


> I'M done. Again. I am arguing with someone that believes the patentee must file an infringement suit and *request* a ruling by the doctrine of equivalents, when it is something the judge instructs.


:bang :beatdeadhorse:

What took you so long?


----------



## nobody99

Curtis52 said:


> Jury instructions:
> 
> There were not separate sets of instructions for hardware and software. Just one set of instructions.


Uh, what?



> First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims.


dfd was quoting directly from the CAFC's appeal decision.


----------



## James Long

jacmyoung said:


> When the judge asked "if this is not an issue?" He was not referring to the issue of the "design around", rather the Judge Ward (Dr. King) case, because this rather long question of the judge's followed TiVo lawyers' citing of the Dr. King's case.


Dear sir ... you are mixing things up again. Judge Ward was NOT the Dr. King case as you falsely assumed! From the transcript: "AND THAT IS WHY WE CITED TO YOUR HONOR JUDGE WARD'S ORDER IN THE _MATHWORKS_ CASE".

Get it right, please.


> So the judge was asking if TiVo would concede that the Dr. King's case they cited would not be an issue, if he made a direct action ruling finding DISH not in contempt.


You have a full transcript in front of you and you STILL post this lie? Unbelievable.


----------



## jacmyoung

Greg Bimson said:


> I'M done. Again. I am arguing with someone that believes the patentee must file an infringement suit and *request* a ruling by the doctrine of equivalents, when it is something the judge instructs.


It is nice to be able to offer you at least one argument on which it appears that you have won, even though it has no weight on the outcome of the ruling.


----------



## jacmyoung

James Long said:


> Dear sir ... you are mixing things up again. Judge Ward was NOT the Dr. King case as you falsely assumed! From the transcript: "AND THAT IS WHY WE CITED TO YOUR HONOR JUDGE WARD'S ORDER IN THE _MATHWORKS_ CASE".
> 
> Get it right, please.
> You have a full transcript in front of you and you STILL post this lie? Unbelievable.


What the difference does it make, as long as the design around was not "an issue" the judge was asking about? The judge was asking if TiVo would concede the case law they just cited would not be an issue? Not the design around, because TiVo had always said the design around was not an issue, there was nothing for TiVo to concede on that.

Whether it was the Judge Ward case, or that Dr. King's case, both had to be first based on the premise that DISH had violated on the face of the order. The judge was asking what if he found DISH *not* in violation on the face of the order? In such scenario, neither of the above two cases applied.

Did TiVo manage to cite any other cases under such judge's scenario? NONE! They never prepared for it.

I recall you argued that my speculation was so wild, that later at 10:27 when Mr. Baxter addressed the court he was citing the Dr. King's case, and that would have proven me wrong.

Did it turn out your speculation about the content of Mr. Baxter's addressing the court correct? Did I accuse you of lying?


----------



## nobody99

Every time I read the transcript of the case, I can't help but think that DISH is trying to pull a fast one on Judge Folsom. I can't help but believe they are trying to make it seem like the workaround only applies to new products..they are specifically avoiding the idea that actual products are already adjudicated. If you read his comments with the assumption that he's dealing with newly-manufactured products, his questions, demeanor, and reasoning all fit right in line with the idea that DISH is within their right to change the design and create a _newly-manufactured_ product from it.

I don't think TiVo's legal team did a very good job laying that out at the hearing (though the certainly did in the briefs).


----------



## James Long

jacmyoung said:


> I recall you argued that my speculation was so wild, that later at 10:27 when Mr. Baxter addressed the court he was citing the Dr. King's case, and that would have proven me wrong.


That was where your lie began. Claiming that Mr Baxter was discussing the King case at all when the minute entry said "Mr. Baxter has background re: case before Judge Ward;". It was your lie that the Ward case was the King case. Uncaught at the time, but you were wrong.


> Did it turn out your speculation about the content of Mr. Baxter's addressing the court correct? Did I accuse you of lying?


As correct as it could be considering your false information. Actually very correct when one is looking at the correct cases and not injecting the false reference to Dr King that you made.

Some day you'll admit an error, jacmyoung. Until then there is no reason to believe anything you say and you are obviously willing to say anything - true or not - to support your viewpoint. (And usually cloak it in a hundred words.)

The transcript remains available for those who want the truth.


----------



## jacmyoung

nobody99 said:


> Every time I read the transcript of the case, I can't help but think that DISH is trying to pull a fast one on Judge Folsom. I can't help but believe they are trying to make it seem like the workaround only applies to new products..they are specifically avoiding the idea that actual products are already adjudicated. If you read his comments with the assumption that he's dealing with newly-manufactured products, his questions, demeanor, and reasoning all fit right in line with the idea that DISH is within their right to change the design and create a _newly-manufactured_ product from it.
> 
> I don't think TiVo's legal team did a very good job laying that out at the hearing (though the certainly did in the briefs).


They couldn't because during the hearing, the judge was there to question each side's logic. And under such scrutiny, you better be prepared, it is no longer a free ride. That is of course true for both DISH and TiVo, the judge scrutinized both of them.

In briefings, each can say whatever they like, there is no one to refute them.


----------



## jacmyoung

James Long said:


> That was where your lie began. Claiming that Mr Baxter was discussing the King case at all when the minute entry said "Mr. Baxter has background re: case before Judge Ward;". It was your lie that the Ward case was the King case. Uncaught at the time, but you were wrong.
> As correct as it could be considering your false information. Actually very correct when one is looking at the correct cases and not injecting the false reference to Dr King that you made.
> 
> Some day you'll admit an error, jacmyoung. Until then there is no reason to believe anything you say and you are obviously willing to say anything - true or not - to support your viewpoint. (And usually cloak it in a hundred words.)
> 
> The transcript remains available for those who want the truth.


What about the "design around"? Why are you not addressing that one?

Was it logical for the judge to ask TiVo if they would concede the design around was not an issue, when TiVo had always said the design around was not an issue?

Or is it more logical to say the "issue" the judge was asking was about the case TiVo just cited? Regardless which one of the two?


----------



## James Long

THE COURT:
I WOULD LIKE TO ASK YOU, DO YOU AGREE THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND, DO YOU CONCEDE THAT THAT'S NOT AN ISSUE, THAT IT SHOULD BE A DIRECT ACTION, OR IS THAT STILL A SUBJECT FOR THE COURT TO DETERMINE IF I CAN GO FORWARD ON A CONTEMPT ACTION TRYING TO DETERMINE IF THERE IS AN INFRINGEMENT, AND IF THERE IS THE APPROPRIATE DISTINCTION THAT WOULD ALLOW ME TO DO SO UNDER THE CASE LAW? ARE YOU ESSENTIALLY CONCEDING, AS MR. MCELHINNY SAYS, THAT WITH THE OPINION OF COUNSEL THAT HAS BEEN PROVIDED THAT PERHAPS THIS IS NOT AN ISSUE?

MR. CHU:
*WE DISAGREE WITH THE POSITION TAKEN BY ECHOSTAR. THERE ARE TWO SEPARATE ISSUES*, ALTHOUGH THEY BOTH HAVE THE WORD CONTEMPT IN THEM. *THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED?*​Zero concession. Perhaps Judge Folsom just wanted to clear up previous statements. Why don't you ask him? 

It appears that Judge Folsom was just playing devil's advocate (and DISH is the devil?) and working through a possible compromise position. If Judge Folsom decides to look at infringement before contempt what would Tivo think? Simple question. Simply answered.


----------



## James Long

FYI: The announcement of the availability of a transcript was added to PACER today with a PACER release date of December 15th. Nothing else new in TX or DE.


----------



## jacmyoung

James Long said:


> THE COURT:
> I WOULD LIKE TO ASK YOU, DO YOU AGREE THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND, DO YOU CONCEDE THAT THAT'S NOT AN ISSUE, THAT IT SHOULD BE A DIRECT ACTION, OR IS THAT STILL A SUBJECT FOR THE COURT TO DETERMINE IF I CAN GO FORWARD ON A CONTEMPT ACTION TRYING TO DETERMINE IF THERE IS AN INFRINGEMENT, AND IF THERE IS THE APPROPRIATE DISTINCTION THAT WOULD ALLOW ME TO DO SO UNDER THE CASE LAW? ARE YOU ESSENTIALLY CONCEDING, AS MR. MCELHINNY SAYS, THAT WITH THE OPINION OF COUNSEL THAT HAS BEEN PROVIDED THAT PERHAPS THIS IS NOT AN ISSUE?
> 
> MR. CHU:
> *WE DISAGREE WITH THE POSITION TAKEN BY ECHOSTAR. THERE ARE TWO SEPARATE ISSUES*, ALTHOUGH THEY BOTH HAVE THE WORD CONTEMPT IN THEM. *THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED?*​Zero concession. Perhaps Judge Folsom just wanted to clear up previous statements. Why don't you ask him?
> 
> It appears that Judge Folsom was just playing devil's advocate (and DISH is the devil?) and working through a possible compromise position. If Judge Folsom decides to look at infringement before contempt what would Tivo think? Simple question. Simply answered.


Of course TiVo refused to concede, why should they? Didn't that just show exactly what the judge was asking? Had the judge asked if they would agree with the judge's "devil's advocacy" that the design around was not an issue, wouldn't TiVo immediately concede? They had been arguing the design around was not an issue all those time.

The judge was asking, if I did not find DISH in violation on the face, would you then concede your case law was not an issue anymore?

The judge scrutinized both lawyers, with the DISH lawyer:

1) Why didn't you inform me the design around and let me decide how to arrange it? In the end he said I did not necessarily disagree with you, just to make a point.

2) Why didn't you tell me about the DE plan on 5/30? You knew you would do it in 30 to 45 minutes, you wanted fairness? But in the end he also conceded DISH was not obligated to "alert" him, that it would be up to the DE court not him to decide on the new software case.

3) Do you think I could still find DISH in contempt even with the design around? Luckily the DISH lawyer said yes. Of course, depending on the "extent of the design around" the judge said. If the extent of the design around is only colorable, DISH is still in contempt. Only if the design around is more than colorable, DISH will not be in contempt.

4) He asked the DISH lawyer to concede the $16 million was a minimum, of course it was a minimum.

On the TiVo lawyer:

1) He had a lot of trouble understanding why Mr. Chu tried to dismiss the KSM case, you could tell the logic of the judge and of Mr. Chu did not meet in the end. The judge simply dropped that issue after Mr. Chu insisted the KSM was not applicable.

2) He asked what if he found DISH not in violation on the face, would you concede your case law was no longer an issue, Mr. Chu refused to concede, and the judge said the closest case was one of yours that proved if the infringer disagreed with the wording of the order he should have asked the court to modify it. Not applicable here since DISH did not disagree with the wording of the order.

3) He also had a lot of problem with how TiVo argued even if the design around got DISH a no contempt, the damages should still be added up to 4/08, because according to TiVo, had the order not been stayed, DISH would not have the chance to do a design around, and then the damages would have applied. While the judge did not go further, anyone can see the lack of merit in such argument, because DISH did get a stay, and did have that oppotunity to design around.


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## Ergan's Toupe

Just stopped in to say good job on killing this thread, Jacy.

You took an excellent source of fact, opinion and information and flushed it down the toilet by constantly whining, twisting the facts, stretching the truth and outright lying.  

Thanks for nothing. I hope you have fun arguing with yourself. :nono2:


----------



## jacmyoung

Just want to add one more item that was burried in all the exchanges, DISH's lawyer actually refuted TiVo's citing of the Judge Ward case in which the infringer argued about why it was wrong to prohibit a non-infringing part to be used to further induce an infringement.

The DISH lawyer's argument against the above case law was, for that case to apply, the order must have prohibited a non-infringing product or part to begin with.

In this current injunction, it never tries to prohibit a non-infringing product or part. It only specifically prohibits the "Infringing Products", so the above Judge Ward's case simply will not apply here.

In that TiVo's case, the infringer disagreed with the order to prohibit the use of the non-infringing spare parts, but the court said if they disagreed they should have asked the court to modify the order, rather took the order in their own hands.

In this case, since the order does not in any way prohibt any non-infringing products or parts, there is no such disagreement from DISH, and therefore the issue of asking the court to modify the order is moot.

At least that was DISH lawyer's argument against TiVo's citing of the Judge Ward's case.

My point was, the DISH lawyer did not even have to go to that length to refute the use of that Judge Ward case. DISH never disagreed with the letter of the order, unlike the infringer in that case, so it was a wrong case to cite in the first place.

Why Judge Folsom jokingly told TiVo's lawyer, this was the *closest* case you had?


----------



## Greg Bimson

I'm now back with a cooler head...


jacmyoung said:


> Was it logical for the judge to ask TiVo if they would concede the design around was not an issue, when TiVo had always said the design around was not an issue?


Because DISH/SATS just said TiVo did not dispute the design-around evidence, bolded by me from the transcript:


> Mr. McElhinny: You allowed some discovery. They want, as you would not be surprised, a lot more and there are disputes that are pending the ruling of today, because if your honor does not hold us in some sort of summary contempt today, they then want to roll it over into another contempt hearing with discovery and expert opinions. *And we think that your honor now has a sufficient record to say that the differences are substantial enough that it's not colorable.*
> The Court: What is in the record that would allow me to make that decision?
> Mr. McElhinny: You have three things in the -- well, two at large. You have the opinions of counsel, which are substantial, and you have the declaration of Mr. Minnick which lays out the nature of the designs.
> The Court: I would be surprised in this case if the other side doesn't disagree.
> Mr. McElhinny: well, it's interesting. I mean --
> The Court: I mean, if they -- maybe they won't. But --
> Mr. McElhinny: Clearly they disagree, but if you look at their papers, in their reply brief and in footnotes they have told you that they think that there is -- that they are going to disagree. *But in this briefing they did not submit a single declaration. They did not submit a single piece of evidence that would suggest that there is any reason to go forward further.* And that is why we cited to your Honor Judge Ward's order in the Mathworks case where he had a preliminary hearing much like this and he said based on that record and just looking at it, he was clear that contempt was not the way to proceed and that the way to proceed was a declaratory judgment action, which in fairness TiVo can still file.


In other words:

We submitted design-around technical documentation, from both outside counsel and VP of Echostar Minnick. Because TiVo did not dispute our evidence nor submit any declarations, Judge Folsom can evaluate whether or not there should be a contempt proceeding on the merits of our design-around.

However, in TiVo's response brief to DISH/SATS oppostion for contempt, TiVo did not dispute the evidence given by the outside counsel. They used it to prove that the "automatic flow control" was still present. And DISH/SATS own arguments that there is no filtering cannot hold water as the PID filtering was found as meeting the limitation of the claim for "parsing".


----------



## jacmyoung

Greg Bimson said:


> ...However, in TiVo's response brief to DISH/SATS oppostion for contempt, TiVo did not dispute the evidence given by the outside counsel. They used it to prove that the "automatic flow control" was still present. And DISH/SATS own arguments that there is no filtering cannot hold water as the PID filtering was found as meeting the limitation of the claim for "parsing".


So what? The above TiVo's response indicated they accepted the design around evidence, only that based on the evidence they reached a conclusion that was different than that of DISH.

DISH said based on the evidence, the design around was more than colorable.

TiVo said based on the same evidence, the design around was only colorable.

Besides this above exchange had nothing to do with that Judge Folsom's particular question, that question immediately followed TiVo lawyer's mentioning of the Judge Ward's case. The exchange between the judge and Mr. Chu at that point was not about the design around, rather the Judge Ward's case.

So when he asked Mr. Chu, if I found no violation on the face with a direct action, would you concede the Judge Ward case (the one you just cited) would not be an issue?

Another reason to prove the judge was not asking if the design around was not an issue, is that if the judge finds DISH not in violation on the face of his order, the judge must have done so after he looks at the design around, and finds the "extent of the design around", as he put it, is more than colorable, as he lectured the DISH lawyer.

So no matter which way you look at it, the judge could not have asked if the design around was not an issue, if he considers design around not an issue, he could not possibly find DISH not in violation on the face of his order.

*The only way* the judge can find DISH not in violation on the face or his order, is to consider the design around, and to find that the "extent of the design around" is more than colorable. Otherwise DISH will be in violation of his order.

If you consider the context above, then when Judge Folsom asked, if I found DISH not in violation on the face of my order, would you then concede it would not be an issue, the "issue" the judge asked Mr. Chu about, was not about the design around, because to find DISH not in violation on the face, the design around had to be an issue, there was no way around it.

If the judge believes the design around is not an issue, he cannot possibly find DISH not in violation to begin with.


----------



## Greg Bimson

jacmyoung said:


> In this current injunction, it never tries to prohibit a non-infringing product or part. It only specifically prohibits the "Infringing Products", so the above Judge Ward's case simply will not apply here.


That is up for debate...

Only if one can accept DISH/SATS interpretation of an "Infringing Product" cannot be a non-infringing product.

Remember, one of DISH/SATS arguments is that in order to be an "Infringing Product", it must still infringe:


> By its plain terms, the Injunction, including the "disable DVR functionality" clause, can only cover "Infringing Products," not the non-infringing technology EchoStar has now deployed. It does violence to the natural meaning of the phrase "Infringing Products" to argue, as TiVo does, that it encompasses units supplied with EchoStar's non-infringing software. TiVo cannot argue that any of EchoStar's boxes infringe any of the "hardware" claims of the '389 patent. The Federal Circuit reversed the judgment of infringement as to all of those claims. And TiVo does not argue that the boxes supplied with the new software infringe any of the "software" claims of the patent. On the contrary, it is TiVo's position that enabling DVR functionality in _any_ of the model numbers listed in the Injunction violates the injunction, regardless of whether the DVR technology infringes TiVo's patent. But, of course, if the software used in an EchoStar product has been _changed_ so that the software claims are no longer infringed, the product can no longer meet the definition of an "Infringing Product," so DVR capability can be enabled without violating the injunction.


Unfortunately for DISH/SATS, since "Infringing Products" was defined as eight specific models of DVR, the entire argument that "Infringing Products" has any other meaning is another "Jedi Mind Trick" (thank you, James).

The only way to get around this issue is to state that a modification to the "Infringing Products" makes them no longer "Infringing Products", and I suppose there is a big problem, when, clarification should be granted by the court on a product already adjudicated as an infringement. Change the software, the RECEIVER was still adjudicated.


----------



## Curtis52

"THE COURT: I WOULD LIKE TO ASK YOU, DO YOU AGREE 
THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT 
WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND..."

The judge is saying that he may rule that he will need to do an infringement analysis before finding contempt. Presumably in another contempt hearing since discovery wasn't granted on the technical differences.


----------



## jacmyoung

Curtis52 said:


> "THE COURT: I WOULD LIKE TO ASK YOU, DO YOU AGREE
> THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT
> WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND..."
> 
> The judge is saying that he may rule that he will need to do an infringement analysis before finding contempt. Presumably in another contempt hearing since discovery wasn't granted on the technical differences.


Correct, but if you read TiVo's answer to that, TiVo said they requested two hearings, one was this on 9/4, and if no contempt, the next would be to rule on the "new products", not the DVRs on the list.

Even TiVo had conceded if DISH is not in contempt this time, the DVRs on the list will be off the table.

The reason? The patentee may not, as the DISH lawyer said, do rolling contempt motions on the same DVR models, once a no contempt is found on those models the decision should be final, as far as those DVR models are concerned.


----------



## jacmyoung

Greg Bimson said:


> That is up for debate...
> 
> Only if one can accept DISH/SATS interpretation of an "Infringing Product" cannot be a non-infringing product.
> 
> Remember, one of DISH/SATS arguments is that in order to be an "Infringing Product", it must still infringe:Unfortunately for DISH/SATS, since "Infringing Products" was defined as eight specific models of DVR, the entire argument that "Infringing Products" has any other meaning is another "Jedi Mind Trick" (thank you, James).
> 
> The only way to get around this issue is to state that a modification to the "Infringing Products" makes them no longer "Infringing Products", and I suppose there is a big problem, when, clarification should be granted by the court on a product already adjudicated as an infringement. Change the software, the RECEIVER was still adjudicated.


Doesn't matter, DISH was arguing that in that Judge Ward case, the order prohibited the use of the non-infringing parts. And that case is not applicable here because this current order does not prohibit any non-infirnging products or parts.

Whether you believe an infringing product can be turned into a non-infringing product is irrelevant in this argument.

The only argument DISH was making, was one order by its letter prohibited the use of the non-infirnging parts, and this order does not, so that case may not be applied here, the letter of the orders are different.


----------



## Curtis52

jacmyoung said:


> Correct, but if you read TiVo's answer to that, TiVo said they requested two hearings, one was this on 9/4, and if no contempt, the next would be to rule on the "new products", not the DVRs on the list.
> 
> Even TiVo had conceded if DISH is not in contempt this time, the DVRs on the list will be off the table.
> 
> The reason? The patentee may not, as the DISH lawyer said, do rolling contempt motions on the same DVR models, once a no contempt is found on those models the decision should be final, as far as those DVR models are concerned.


The response given by TiVo was regarding a possible finding by the judge that Dish complied. It was not a response to the possibility brought up by Judge Folsom that he might require an infringement analysis before finding contempt.


> "THE COURT: AND IF I FIND NO, WHERE DO YOU THINK THAT
> LEAVES TIVO, THEN?
> MR. CHU: *OKAY. SUPPOSE YOU RULE THAT IT WAS
> COMPLIED WITH AND THAT THEY ACTUALLY DISABLED* -- "


----------



## Ergan's Toupe

jacmyoung said:


> Even TiVo had conceded if DISH is not in contempt this time, the DVRs on the list will be off the table.


Still making it up as you go along? :nono2:


----------



## Greg Bimson

jacmyoung said:


> Whether you believe an infringing product can be turned into a non-infringing product is irrelevant in this argument.


Not when it is being used as the basis for "interpretation":


> But, of course, if the software used in an EchoStar product has been changed so that the software claims are no longer infringed, the product can no longer meet the definition of an "Infringing Product," so DVR capability can be enabled without violating the injunction.


It is the "backwards" self-help theory.

DISH/SATS says they've fully complied with the injunction. That can only be true if the above quote from their opposition against contempt is true.


jacmyoung said:


> Doesn't matter, DISH was arguing that in that Judge Ward case, the order prohibited the use of the non-infringing parts. And that case is not applicable here because this current order does not prohibit any non-infirnging products or parts.


The "Judge Ward" case is the _Mathworks_ case. _Carborundum_ is the case about prohibiting use of the non-infringing parts.

I have the feeling, based upon what TiVo counsel Baxter stated, he was counsel for _Mathworks_.


----------



## James Long

jacmyoung said:


> In this current injunction, it never tries to prohibit a non-infringing product or part. It only specifically prohibits the "Infringing Products", so the above Judge Ward's case simply will not apply here.


That is a matter of opinion, not a matter of fact and actually the subject of some taunting of Judge Folsom by DISH's lawyer (you would never prohibit something non-infringing, would you?).

In essence, Judge Folsom DID prohibit something non-infringing. He prohibited the use of the named adjudicated Infringing Products as DVRs until the patent expires. He did this willingly without regard to the software that provides DVR service. The infringing products MUST have their DVR functionality disabled.

{Insert 500 word ramble claiming to be a rebutal here in your reply.}


> In that TiVo's case, the infringer disagreed with the order to prohibit the use of the non-infringing spare parts, but the court said if they disagreed they should have asked the court to modify the order, rather took the order in their own hands.


In the quoted case the appeals court AGREED with the prohibition on non-infringing repair parts and found the infringer in contempt. The rulings clearly state that contempt can been found regardless of infringement.


> In this case, since the order does not in any way prohibt any non-infringing products or parts, there is no such disagreement from DISH, and therefore the issue of asking the court to modify the order is moot.


Start with a false assumption and you will end up with a false result.


jacmyoung said:


> Correct, but if you read TiVo's answer to that, TiVo said they requested two hearings, one was this on 9/4, and if no contempt, the next would be to rule on the "new products", not the DVRs on the list.


Incorrect. If "no" contempt on the face Tivo will be pressing for contempt on infringement. I realize that it is your strongly held belief that Judge Folsom must find DISH to be non-infringing to find no contempt, but a shadow of doubt on infringement (if Judge Folsom wants to render Walker moot by saying "it is irrelevant ... DISH still infringes" or wants to make law without putting his foot in his mouth) could be enough to hold off on contempt until after discovery when infringement can be properly adjudicated.

Unless Tivo is comfortable with Judge Folsom making the "2nd hearing" infringement decision without further discovery. Tivo's reply indicates that they would not be comfortable with Judge Folsom moving on without more discovery.

If Tivo wins on contempt they will go after new products (not just new placements of existing adjudicated "Infringing Products" that are already covered under the injunction). It just takes understanding everything since May to see that.


----------



## Ergan's Toupe

jacmyoung said:


> Why Judge Folsom jokingly told TiVo's lawyer, this was the *closest* case you had?


Thanks to James, I have a simple question for you. Let's see if you can answer it in less than a thousand words.

How do you suppose Folsom is going to ignore a Supreme Court case to rule in DISH's favor.

This is a simple question, lets see if you can give a simple answer. :lol:


----------



## jacmyoung

Ergan's Toupe;1797330 said:


> Thanks to James, I have a simple question for you. Let's see if you can answer it in less than a thousand words.
> 
> How do you suppose Folsom is going to ignore a Supreme Court case to rule in DISH's favor.
> 
> This is a simple question, lets see if you can give a simple answer. :lol:


Simple, once the judge finds dish not in violation of his order, that case will not be an issue, as judge said himself when he asked TiVo.

The only time the two TiVo's cases may apply is if the judge finds DISH in violation of his order. If not they no longer apply.

That was why the judge kept asking if TiVo could cite him another case law, TiVo could not, so the judge said well that was the closest case you had?


----------



## jacmyoung

James Long said:


> ...If Tivo wins on contempt they will go after new products (not just new placements of existing adjudicated "Infringing Products" that are already covered under the injunction). It just takes understanding everything since May to see that.


No that was not what Mr. Chu said, he said if DISH was *not* in contempt on this hearing, TiVo would ask for the second hearing and go after the "new products".


----------



## James Long

Tivo cited several cases where the contempt was found simply by not following an order. Judge Folsom evidently wanted one that involved infringement (trying to stay away from a MLK precedent case) but not having a closer case does not mean Walker does not apply.

The course of this case is clear ... no contempt on face leads to a motion for contempt on infringement. Contempt on face leads to a motion for contempt on new products (claiming the ViP series are only colorably different). I'm sure you just misunderstood if you see it otherwise.


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## Ergan's Toupe

jacmyoung said:


> Simple, once the judge finds dish not in violation of his order, <<snipp>>


I think I'm starting to see the problem here....


----------



## jacmyoung

James Long said:


> ...In essence, Judge Folsom DID prohibit something non-infringing. He prohibited the use of the named adjudicated Infringing Products as DVRs until the patent expires. He did this willingly without regard to the software that provides DVR service. The infringing products MUST have their DVR functionality disabled....


You can only say so after the judge finds DISH in violation of his order, he has not ruled yet.

Besides, what the DISH lawyer was arguing was the difference in the letter of the orders between the two cases, in TiVo's case, the order did by letter prohibit the use of the non-infringing parts, in this case the order did not prohibit any use of non-infringing products or parts, by letter that is. That was the difference the DISH lawyer was trying to point out.

Anything beyond the letter, is up to anyone's interpretation of course.


----------



## jacmyoung

James Long said:


> Tivo cited several cases where the contempt was found simply by not following an order. Judge Folsom evidently wanted one that involved infringement (trying to stay away from a MLK precedent case) but not having a closer case does not mean Walker does not apply.
> 
> The course of this case is clear ... no contempt on face leads to a motion for contempt on infringement. Contempt on face leads to a motion for contempt on new products (claiming the ViP series are only colorably different). I'm sure you just misunderstood if you see it otherwise.


The whole problem with TiVo was they could not cite another case after the judge asked if he did not find DISH in violation on the face of his order, what did that leave you?

Of course if he finds DISH not in violation of his order, none of the TiVo's cases would apply, because all those cases were based on the premise that the defendants did violate the orders.

The weakness in TiVo's argument is, they simply did not think about the possibility that the judge might find DISH not in violation of his order on the face. Because TiVo believes so strongly that their interpretation of the face of the order is the only correct way, that there could not possibly be another interpretation.

The patantee in the StarBrie case did the same, they thought their interpretation was the only correct one, when the court ordered the infringer to stop the use and the sale of the 6 products by their names.

But when the infringer continued to use and sell those 6 products by their names, clearly in violation on the face of the order, the patentee thought hey we nailed it!

But the court said, wait, you could not "possibly" interpret my order as to stop the use and sale of the 6 products by their names, but to stop the use and sale of the "internal formulations" of those products.

I bet the patentee in that case never prepared for that wild interpretation by the court.


----------



## jacmyoung

DISH by citing the StarBrite case has laid out a precedence for Judge Folsom to consider, basically saying that it will be perfectly ok for the judge to follow that case law, and say to TiVo:

But you cannot possibly interpret my order as to disable the DVR functions, rather to disable the internal old software.

I know this is very very difficult for TiVo's supporters to even imagine, but it has been done by the court before, that is the point. Each party must cite their own case law in their own support.

DISH did their job, TiVo failed on theirs, when the judge asked TiVo if he found no violation on the face, what did that leave you?


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## Ergan's Toupe

jacmyoung said:


> The whole problem with TiVo was they could not cite another case after the judge asked if he did not find DISH in violation on the face of his order, what did that leave you?


Why does Tivo need more than one? Charlie is hanging his hat on one case too (KSM), isn't he?

I'll ask you again. How is Folsom going to ignore a Supreme Court case to rule in DISH's favor?


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## jacmyoung

Ergan's Toupe;1797434 said:


> Why does Tivo need more than one? Charlie is hanging his hat on one case too (KSM), isn't he?
> 
> I'll ask you again. How is Folsom going to ignore a Supreme Court case to rule in DISH's favor?


I just answered it, you just could not understand.


----------



## Ergan's Toupe

jacmyoung said:


> I just answered it, you just could not understand.


No you didn't. You are basing your assumptions on Folsom ruling no cotempt. I didn't ask you that, and you have no idea how Folsom is going to rule so it is irrelevant to my question.

I asked you twice how Folsom is going to ignore a Supreme Court case to rule in DISH's favor and twice you failed to answer, so I ask for the third time....

How is Folsom is going to ignore a Supreme Court case to rule in DISH's favor?

It's a simple question, really, it shouldn't take three tries to answer it....


----------



## nobody99

James Long said:


> The course of this case is clear ... no contempt on face leads to a motion for contempt on infringement. Contempt on face leads to a motion for contempt on new products (claiming the ViP series are only colorably different).


That is an excellent summation of where this case will lead.


----------



## Ergan's Toupe

nobody99 said:


> That is an excellent summation of where this case will lead.


I agree, but how is Folsom going to get around ruling against his own order, not to mention a supreme court ruling. Ask for a "do-over"? :lol:


----------



## jacmyoung

James Long said:


> ...The course of this case is clear ... no contempt on face leads to a motion for contempt on infringement. ...


There is only one problem, TiVo did not agree with you. Mr. Chu said in front of the judge, if he found no contempt on the face, TiVo would move forward with the second hearing to address the "new products", meaning they would give up on the DVRs on the list.


----------



## jacmyoung

Ergan's Toupe;1797526 said:


> I agree, but how is Folsom going to get around ruling against his own order, not to mention a supreme court ruling. Ask for a "do-over"? :lol:


I will try to answer this one question of yours, again, only if another regular TiVo supporter here insists I do, otherwise you will just have to figure it out for yourself, because I already answered it, and everyone else had no issue with my answer. Continue to ask the question that simply is irrelevant under the scenario that the judge finds DISH not in violation on the face, is not helpful for your cause.


----------



## nobody99

jacmyoung said:


> There is only one problem, TiVo did not agree with you. Mr. Chu said in front of the judge, if he found no contempt on the face, TiVo would move forward with the second hearing to address the "new products", meaning they would give up on the DVRs on the list.


Dear God, are you really that dense?


----------



## Curtis52

jacmyoung said:


> There is only one problem, TiVo did not agree with you. Mr. Chu said in front of the judge, if he found no contempt on the face, TiVo would move forward with the second hearing to address the "new products", meaning they would give up on the DVRs on the list.


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

Chu also did not address what TiVo would do if the judge found that Dish had complied with the disable order. He just started talking about a contempt hearing on the new boxes.


----------



## CuriousMark

jacmyoung said:


> I will try to answer this one question of yours, again, only if another regular TiVo supporter here insists I do, otherwise you will just have to figure it out for yourself, because I already answered it, and everyone else had no issue with my answer. Continue to ask the question that simply is irrelevant under the scenario that the judge finds DISH not in violation on the face, is not helpful for your cause.


We would all like to hear a straight answer from you. The question is not irrelevant and you have not yet actually answered it without throwing in an unproven assumption first.


----------



## Curtis52

The Walker V. City OF Birmingham Supreme Court case does not require that all defendants in contempt cases be found in contempt of court. For example, if there is no injunction violation, there is no contempt of court and Walker is irrelevant. Judge Folsom himself posited the possibility of finding Dish in compliance in several of his questions to TiVo.


----------



## jacmyoung

Curtis52 said:


> ...For example, if there is no injunction violation, there is no contempt of court and Walker is irrelevant. ...


Here you go, another person's same answer to that "fateful" question Pretty straight forward answer CuriousMark.


----------



## CuriousMark

Curtis52 said:


> The Walker V. City OF Birmingham Supreme Court case does not require that all defendants in contempt cases be found in contempt of court.


But this was the part that was being asked for.


----------



## jacmyoung

Curtis52 said:


> Chu did not address the possibility that the judge raised about not being able to find contempt without an infringement analysis first. The judge might require a new contempt hearing that includes discovery and an infringement analysis.
> 
> Chu also did not address what TiVo would do if the judge found that Dish had complied with the disable order. He just started talking about a contempt hearing on the new boxes.


But as I said, the judge simply cannot find DISH not in violation of the order, without considering the design around. Because without the design around, DISH must be in contempt, even DISH does not dispute that.

Why? DISH did not simply disable "the DVR functions", they instead disabled "the DVR functions under the old design", and re-enabled "the DVR functions under the new design", that is DISH's argument, correct?

So if old design/new design are irrelevant, as TiVo insists, only the "DVR functions" are at issue, then of course DISH did not disable the DVR functions, and DISH is in contempt.

Again, to find DISH not in contempt, the judge had to consider the design around, and if after he considers the design around, in fact not just the design around, but the "extent of the design around", as the judge put it, and he finds the design around more than colorable, therefore agrees with DISH that DISH is not in violation.

After that, another hearing on the "new products", or even the "old products", will be moot, do you not agree?

Now let me take one step back again, to accept your notion that the judge did not grant a discovery on the design around before, so he may still insist TiVo be allowed an additional discovery on the new design around.

The problem is, TiVo did get a discovery on the design around, before 5/30, that discovery was arranged between DISH and TiVo themselves, and after that discovery, TiVo never disputed the new design around evidence.

So DISH can ask, why another discovery if TiVo did not reject those evidence? TiVo accepted those evidence without any problem, only that TiVo said based on such evidence the design around still infringed.

So again if the judge insists there should be another discovery granted for TiVo, DISH will have a very legit reason to appeal that decision.

The reasons for a discovery are usuallly because:

Either there is no evidence, or the evidence is in dispute, or the evidence is not sufficient to make a decision, or any combination of the three.

But none of the above three are true today.

1) The design around evidence is right in front of the judge,
2) The design around evidence is not in dispute, both parties accepted it, and
3) apparently the evidence is sufficient to make a decision, because both parties have already made their own decision based on the evidence, only that the decisions they made are opposite to each other.

So the judge will just have to decide which one he will agree to. Another discovery will be moot, and if the judge insists to have another one, DISH can certainly appeal that decision. Whether this is going to happen that way of course is anyone's guess, I only tried to give you my take on your scenario.

And of course the above are only my opinions.


----------



## jacmyoung

CuriousMark said:


> But this was the part that was being asked for.


And Curtis52 gave you his answer in the second half of his sentence.


----------



## Curtis52

jacmyoung said:


> But as I said, the judge simply cannot find DISH not in violation of the order, without considering the design around.


He would say that he cannot find Dish in contempt at this time bacause he needs to consider the design around after an infringement analysis. Here is what he would rule in his own words:


> "I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND". Motion denied.


----------



## Greg Bimson

Curtis52 said:


> "I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND". Motion denied.


And judges everywhere will curse the day, after DISH/SATS comes back for their 219th modification because the prior 218 have been ruled as infringements. Even though this is somehow unclear:


> Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, [...] disable all storage to and playback from a hard disk drive of television data in all but 192,708 units of the [DP-501, DP- 508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942] that have been placed with an end user or subscriber.


Although there have been two edits to this statement, the edits are the definitions of "to disable the DVR functionality" and "Infringing Products" that the legal world would recognize absolutely. There is no gray-area here.

Judge Folsom made a VERY LARGE POINT that the court was never informed of any of the modifications. Somehow, I think that will be the basis of his ruling.

Just my opinion.


----------



## Curtis52

Greg Bimson said:


> There is no gray-area here.


" In Star Brite, the defendant had
"continue[d] to market the six products named in [the] court's injunction" but (as here) had
modified certain key internal features of the products. Id. at 641. As TiVo does here, the
patentee "argue[d] that the injunction should be read as requiring defendant to cease the
manufacture and sale of any product using the same brand names as were listed in the
injunction." Id. at 644 n.3. The court rejected this theory: "First, the court believes that its
intention to enjoin the production of only the infringing formulation was clear. Second,
injunctions as broad as plaintiff's proposed reading are disapproved. And third, such a reading
would not constitute a clear order of the court for purposes of a motion for contempt." Id.
(citation omitted). As in Star Brite, the Injunction issued by this Court was a "clear order" thatcannot accommodate TiVo's current, overbroad reading.""


----------



## nobody99

Curtis52 said:


> He would say that he cannot find Dish in contempt at this time bacause he needs to consider the design around after an infringement analysis.


I don't know how many ways to communicate it, but your premise is simply wrong. There is absolutely no requirement for Judge Folsom to consider _anything_ for an already-adjudicated device. You can keep quoting the same tired old case over and over, but it doesn't change the simple fact that your opinion is plainly wrong. Repeating it four thousand times won't change that.

Now if we were talking to changes to a new device, then I completely agree with you. But that's not what 9/4 was about, and it's not what the contempt which will come shortly is about.


----------



## Ergan's Toupe

jacmyoung said:


> And Curtis52 gave you his answer in the second half of his sentence.


So you and your puppet have come to the same conclusion that Folsom will not find E* in contempt? Good for you guys. You still haven't answered my question.

What you guys are saying is that Folsom will forget all about his own injunction and take Charlie's word that he actually made a more than colorable difference in this so called design around? Right?

This "Herculean effort" that cost all of $750,000 that was so novel and more than colorably different that we all found out about it in Charlie's SEC filings, right?

That work around?

The work around that has NOTHING to do with this contempt hearing? What part of disable DVR functions for the life of the patent do you guys not understand?

Since neither you nor your puppet can answer a simple question I will assume you will continue to avoid the facts and pass the question off to each other, but I will ask it again....

How is Folsom going to go against his own injunction AND a Supreme Court ruling to rule for E*?

If you guys need to put your heads together and talk it out, feel free, but I really would like to know how you think Folsom does it. How does he go against his own, as well as his "boss''" orders to rule that Charlie obeyed the injunction?


----------



## jacmyoung

Greg Bimson said:


> And judges everywhere will curse the day, after DISH/SATS comes back for their 219th modification because the prior 218 have been ruled as infringements. Even though this is somehow unclear:Although there have been two edits to this statement, the edits are the definitions of "to disable the DVR functionality" and "Infringing Products" that the legal world would recognize absolutely. There is no gray-area here.
> 
> Judge Folsom made a VERY LARGE POINT that the court was never informed of any of the modifications. Somehow, I think that will be the basis of his ruling.
> 
> Just my opinion.


Yet after the judge made a big point of DISH never informed him of the modification, he did say he did not necessarily disagree with DISH's lawyer, only wanted to make sure the lawyer undertood his point. So now you think he will definately rule on that basis after he said he did not necessarily disagree with DISH's lawyer as far as why he did not inform the court?

Is this how you often place your bets?

As far as DISH coming back with 219th modification, please, this is the 1st modification we are talking about. Did you conveniently forget a case law DISH cited before, in which the court finally had enough, and asked the infringer must first inform the court and get a pre-approval before any more modifications?

Do you remember under what circumstance did that court insist the pre-approval? After the infringer modified (in bad faith) a total of 4 times, and each time was still found the modification was only colorable, and only after that did the court asked the infringer from that point on you must first inform me of any more modifications.

Here the court has yet ruled on the very first modification!

So please, use the case law to support your argument, not just throwing a large number around, it does not scare anyone.


----------



## jacmyoung

BTW Curtis52, when both sides disagree with you, you know what you are up against

But let me say this, I never said your scenario is not possible, but even if the judge does that, so what? It would simply mean another 3 months of delay, as long as DISH's evidence is solid, they have nothing to fear.

In fact if the judge does that, I think it will be more likely TiVo to knock on Charlie's door before they would wait another 3 months.

The only exception will be if TiVo is convinced DISH's new design around never existed. But that is highly unlikely, because TiVo did get to see the new codes from DISH remember, before 5/30? And TiVo never disputed the design around evidence.


----------



## Ergan's Toupe

jacmyoung said:


> BTW Curtis52, when both sides disagree with you, you know what you are up against
> 
> But let me say this, I never said your scenario is not possible, but even if the judge does that, so what? It would simply mean another 3 months of delay, as long as DISH's evidence is solid, they have nothing to fear.
> 
> In fact if the judge does that, I think it will be more likely TiVo to knock on Charlie's door before they would wait another 3 months.
> 
> The only exception will be if TiVo is convinced DISH's new design around never existed. But that is highly unlikely, because TiVo did get to see the new codes from DISH remember, before 5/30? And TiVo never disputed the design around evidence.


You still didn't answer my question.


----------



## Ergan's Toupe

jacmyoung said:


> TiVo did get to see the new codes from DISH remember, before 5/30? And TiVo never disputed the design around evidence.


STOP LYING!!!!

Seriousy, what is your major malfunction?


----------



## jacmyoung

Ergan's Toupe;1797996 said:


> You still didn't answer my question.


Did you not read? I gave you the answer, you simply did not understand that answer. Even Curtis52 tried to help out on the answer, but what did he get? You insulted him:

"So you and your puppet have come to the same conclusion that Folsom will not find E* in contempt? Good for you guys. You still haven't answered my question."

Two persons who have studies this case long before you even cared to join, and even though we both disagreed on many issues, we both had tried to answer your question, only that you could not understand the answer, and instead, you chose insult!


----------



## jacmyoung

Ergan's Toupe;1798008 said:


> STOP LYING!!!!
> 
> Seriousy, what is your major malfunction?


You know this will not be the first time you accused me of lying only to find out later you simply did not know enough?

Before the 5/30 meeting, DISH and TiVo had a behind the door meeting and exchanged some information, and DISH provided TiVo some new software codes, and the letter by a reputable 3rd party patent firm.

You did not know because you only joined later. Again before you accuse one of lying, at least first know what you are talking about.


----------



## Curtis52

jacmyoung said:


> But let me say this, I never said your scenario is not possible


I was pretty sure that's what you said:


> "But as I said, the judge simply cannot find DISH not in violation of the order, without considering the design around."


----------



## jacmyoung

Curtis52 said:


> I was pretty sure that's what you said:


Okay then I concede I should have said unlikely.

Look, in a debate, the first sign of weakness is when one side tries to pick on the mistakes by the other side, especially when the mistakes are not essential to the argument and the outcome, whether by picking on the spelling, a wrong choice of word. It is called attack the man, when one fails to argue on the merits, one instead attack the person, and hope by attacking the person, one would succeed in discredit his argument.

I am certainly not saying you are doing this, but I wish you have looked at the important arguments, not pick on the ones even I had already conceded and still proved my point. You know the "on alternative" argument?


----------



## nobody99

jacmyoung said:


> Before the 5/30 meeting, DISH and TiVo had a behind the door meeting and exchanged some information, and DISH provided TiVo some new software codes, and the letter by a reputable 3rd party patent firm.


Oh, please. "reputable" firm? Like the one who said they weren't infringing before they were convicted of...infringing?

And how on earth can you possible know what "software codes" DISH provided TiVo?

No worries. DISH's day of reckoning is coming.


----------



## peak_reception

Got fed up reading the 9-4 transcript and so took a few days off.

Judge Folsom appears to be bending backward making sure that ALL arguments are heard (even the ones he said weren't going to be discussed that day). That's all well and good, to a point. *Beyond that point*, definitely reached by the end of that hearing, *it looks like he's bending forward for yet another round of gamesmanship, fog, and delay by Charlie and his lawyers. *



Curtis52 said:


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


 *He really makes a boob out of himself if he does that.* It's in complete contradiction to the road map that he laid out in early June when he set the Contempt Hearing and framed the first issue as to whether or not EchoStar has complied with his Injunction... and insisted that no discovery was necessary (except on damages).



> *Chu also did not address what TiVo would do if the judge found that Dish had complied with the disable order. *He just started talking about a contempt hearing on the new boxes.


 *It's probably hard for Chu to imagine the Judge finding that Dish had complied.* Hard for just about anyone but Jac and Curtis to imagine, really


----------



## jacmyoung

peak_reception said:


> Got fed up reading the 9-4 transcript and so took a few days off.
> 
> Judge Folsom appears to be bending backward making sure that ALL arguments are heard (even the ones he said weren't going to be discussed that day). That's all well and good, to a point. *Beyond that point*, definitely reached by the end of that hearing, *it looks like he's bending forward for yet another round of gamesmanship, fog, and delay by Charlie and his lawyers. *
> 
> *He really makes a boob out of himself if he does that.* It's in complete contradiction to the road map that he laid out in early June when he set the Contempt Hearing and framed the first issue as to whether or not EchoStar has complied with his Injunction... and insisted that no discovery was necessary (except on damages).
> 
> *It's probably hard for Chu to imagine the Judge finding that Dish had complied.* Hard for just about anyone but Jac and Curtis to imagine, really


But you must at least agree for those "anyone" (including yourself to some extent) they had long made up their minds, so no case law nor any clues the judge gave on 9/4 would ever have made any difference?

The difference is we have all the case law, you do not. Even the few TiVo cited had been rendered irrelevant after judge's questions.

Want to bet?

Remember you already lost one, you said yes the judge did discuss a few issues that was not on his agenda. Before 9/4 the bet was no, he could not possibly discuss anything not on his agenda.

You know you can always do double or nothing


----------



## Ergan's Toupe

jacmyoung said:


> You know this will not be the first time you accused me of lying only to find out later you simply did not know enough?
> 
> Before the 5/30 meeting, DISH and TiVo had a behind the door meeting and exchanged some information, and DISH provided TiVo some new software codes, and the letter by a reputable 3rd party patent firm.
> 
> You did not know because you only joined later. Again before you accuse one of lying, at least first know what you are talking about.


As long as you keep lying I will keep calling you out on it. 

PS: Still haven't answered my question....


----------



## BNUMM

Greg Bimson said:


> And judges everywhere will curse the day, after DISH/SATS comes back for their 219th modification because the prior 218 have been ruled as infringements. Even though this is somehow unclear:Although there have been two edits to this statement, the edits are the definitions of "to disable the DVR functionality" and "Infringing Products" that the legal world would recognize absolutely. There is no gray-area here.
> 
> Judge Folsom made a VERY LARGE POINT that the court was never informed of any of the modifications. Somehow, I think that will be the basis of his ruling.
> 
> Just my opinion.


Question? If the court was never formally notified of the modifications can he even consider them when he makes his decision?


----------



## James Long

jacmyoung said:


> The weakness in TiVo's argument is, they simply did not think about the possibility that the judge might find DISH not in violation of his order on the face.


WRONG. Go back to May 30th ... Tivo is clearly thinking about the "if not" and that is clearly the next step in the process if DISH is not found in contempt on the face.


> The patantee in the StarBrie case did the same, they thought their interpretation was the only correct one, when the court ordered the infringer to stop the use and the sale of the 6 products by their names.
> 
> But when the infringer continued to use and sell those 6 products by their names, clearly in violation on the face of the order, the patentee thought hey we nailed it!


The NAMES were used to identify the product, not to define the product. Reusing the same names led to confusion but it did not lead to infringement. The injunction did not order the defendant to cease using the product names. The injunction ordered the defendant to cease selling the infringing products. The defendant did so and was cleared of contempt based on non-infringing products. Starbrite is a patent case, not a trade mark case. The name wasn't the issue. The product was the issue.

But that is an argument for the next phase of the case ... contempt based on infringement. This contempt motion is simply based on not following the disable order.


jacmyoung said:


> There is only one problem, TiVo did not agree with you. Mr. Chu said in front of the judge, if he found no contempt on the face, TiVo would move forward with the second hearing to address the "new products", meaning they would give up on the DVRs on the list.


Not so clear, except to those who wish it was.


jacmyoung said:


> But as I said, the judge simply cannot find DISH not in violation of the order, without considering the design around. Because without the design around, DISH must be in contempt, even DISH does not dispute that.


Duh. If DISH didn't change their DVRs they are obviously in contempt. But the converse is not automatically true. Changing the software isn't what the court ordered. _*DISABLING*_ the DVR functionality is what the court ordered.


----------



## James Long

Curtis52 said:


> The Walker V. City OF Birmingham Supreme Court case does not require that all defendants in contempt cases be found in contempt of court. For example, if there is no injunction violation, there is no contempt of court and Walker is irrelevant. Judge Folsom himself posited the possibility of finding Dish in compliance in several of his questions to TiVo.


Isn't failing to disable the DVR functionality a violation of the injunction? It is obvious that not all defendants need to be found guilty. Only the guilty defendants need to be found guilty ... and just like Walker and Dr King were guilty of disobeying a court order telling them not to march, DISH has disobeyed a court order telling them to disable the DVR functionality.

Judge Folsom covered a lot of possibilities going both ways. Each side focuses on their own desires in pointing out that Judge Folsom leaned toward them. But he leaned both ways. The most important words are yet to come ... the ruling.


----------



## James Long

jacmyoung said:


> The difference is we have all the case law, you do not. Even the few TiVo cited had been rendered irrelevant after judge's questions.


Only in your wacked out opinion. Judge Folsom's role _*on*_ 9-4 was to listen and ask questions. You may find what you believe to be irrelevant to be a major part in his decision.

It looks like we're to the point where there is nothing more to be said except repeating the same old points. If anyone has anything new to add, make your post.

(Yes, I said _*NEW*_, and I meant it.)


----------



## James Long

BNUMM said:


> Question? If the court was never formally notified of the modifications can he even consider them when he makes his decision?


Judge Folsom was notified in filings for the May 30th hearing and this hearing. Why he was not notified when the changes actually occurred in 2007 is the question. Should this error by DISH affect the outcome of the case?


----------



## Curtis52

BNUMM said:


> Question? If the court was never formally notified of the modifications can he even consider them when he makes his decision?


TiVo notified the court in its agenda for the 5-30 meeting.


> "On May 12, 2008, EchoStar made its modified source code available for review by TiVo. EchoStar also waived privilege and produced to TiVo three opinions of counsel relating to EchoStar's modified software. "


----------



## peak_reception

jacmyoung said:


> But you must at least agree for those "anyone" (including yourself to some extent) they had long made up their minds, so no case law nor any clues the judge gave on 9/4 would ever have made any difference?


 It made a difference to me. I've lost some confidence in Judge Folsom. Not all. some.



> The difference is we have all the case law, you do not. Even the few TiVo cited had been rendered irrelevant after judge's questions.


 The Judge was indulging all possibilities (against his own road map). It may just be CYA so he doesn't get overturned by the CAFC. Or _maybe_ he is backpeddling in response to KSM which is a tough case for TiVo and the Judge to deal _with if or when infringement is *the* paramount issue_. I'll grant you this; Dish has the more creative lawyers.



> Remember you already lost one, you said yes the judge did discuss a few issues that was not on his agenda. Before 9/4 the bet was no, he could not possibly discuss anything not on his agenda.


 What I predicted was that he would "touch on" other issues (Like the design-around) but that the primary focus would be on whether or not Dish complied with the Injunction or not. I wonder who I got that crazy idea from? 



> Want to bet? ...You know you can always do double or nothing


 I'll stick to the original bet  thank you; Whether or not EchoStar will be held in Contempt of Court for non-compliance with the Injunction. No doubling up though after the Judge's questions and comments on 9-4. As i say, I've lost some confidence in him. Looks like he might be bending forward for still more shenanigans.


----------



## Greg Bimson

BNUMM said:


> Question? If the court was never formally notified of the modifications can he even consider them when he makes his decision?





James Long said:


> Judge Folsom was notified in filings for the May 30th hearing and this hearing. Why he was not notified when the changes actually occurred in 2007 is the question. Should this error by DISH affect the outcome of the case?


Here is my big problem with the train of thought...

501 found to infringe
501 enjoined and restrained from sales
501 in customer use ordered to have DVR functionality disabled for the length of Time Warp patent

When the 501 is disabled, it is now no longer infringing and subject to an injunction. This of course blows out the assumption that an injunction cannot enjoin a non-infringing device.

If that 501 is re-enabled with DVR functionality, it should be subject to contempt, as the device is still subject to the injunction.

However, if DISH/SATS moves the court to rule that they have a creation that no longer infringes and can be placed back into the ruled-infringing receivers to make them functional, that would make sense.

And that is what DISH/SATS is attempting during a contempt proceeding. As a matter of fact that is why DISH/SATS is so hell-bent on the Delaware action, because Judge Folsom would not *immediately consider* the design-around.

I think it is a mis-direction, anyway. I believe DISH/SATS knows their design-around infringes, and this action is simply a stalling tactic to drag through the court for years and years.

The problem is if there is a motion granted regarding contempt, DISH/SATS will have a firehose attached directly on their bank account and pointed squarely at TiVo's if DISH/SATS decides not to comply with the contempt order.

Heck, if TiVo gets their way, the infringement damages will be up to $320 million as of April, 2008. Add contempt to the mix for the past five months, and then we'll see what a bargain it was to settle...


----------



## scooper

Dish's lawyers seem to write better and stick on point better than Tivo's, IMO.


----------



## scooper

There's another problem I have with the Injunction on the placed units - The judge is ordering Dish to Disable the DVR functionality. ok - so well and good on the LEASED UNITS (that Dish is technically still the owner of). I have a BIG problem with this on the CUSTOMER OWNED units. So explain to me why my OWNED 510 should be disabled without refering to the injunction on its face.


----------



## Curtis52

Greg Bimson said:


> When the 501 is disabled, it is now no longer infringing and subject to an injunction. This of course blows out the assumption that an injunction cannot enjoin a non-infringing device.


If a 501 is disabled it is no longer subject to the injunction. If it is later modified to contain the infringing software again it becomes subject to the injunction again.


----------



## James Long

Greg Bimson said:


> Here is my big problem with the train of thought...
> 
> 501 found to infringe
> 501 enjoined and restrained from sales
> 501 in customer use ordered to have DVR functionality disabled for the length of Time Warp patent
> 
> When the 501 is disabled, it is now no longer infringing and subject to an injunction. This of course blows out the assumption that an injunction cannot enjoin a non-infringing device.
> 
> If that 501 is re-enabled with DVR functionality, it should be subject to contempt, as the device is still subject to the injunction.


The way this injunction was worded (perhaps incorrectly) the Infringing Products are always Infringing Products and remain subject to the injunction. Those Infringing Products must have their DVR functionality (as defined in the injunction) disabled. New Infringing Products must not be placed with their DVR functionality enabled.

And that is a point where we stop and say "huh?". 
"The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products."​The court IS allowing new placements of Infringing Products as long as they have the DVR functionality disabled.

The 501 and it's brothers don't fall out of the injunction when they have their DVR functionality disabled, they fall in to compliance with the injunction when they have their DVR functionality disabled.

The 501 w/DVR functionality disabled may no longer infringe, but it is still an Infringing Product. If DISH doesn't like that they should have notified the court or their modification and asked for a ruling removing 501's with new software from the pool of Infringing Products. Or they should have physically replaced the products and let Tivo start from scratch.

BTW: Even IF the injunction was worded wrong the place to fight that is through the court process. Not through disobedience with the order. If the city puts up a mid block stop sign where there is no reason for one (no cross walk, driveway or cross street) I still have to obey it. If I want to stop stopping there I need to get the city to take down the sign (or at least clarify it in writing).



> I think it is a mis-direction, anyway. I believe DISH/SATS knows their design-around infringes, and this action is simply a stalling tactic to drag through the court for years and years.


I disagree. I believe DISH thinks they have a non-infringing product. They are simply trying to get it to market without constant threat of court action.


----------



## Curtis52

scooper said:


> There's another problem I have with the Injunction on the placed units - The judge is ordering Dish to Disable the DVR functionality. ok - so well and good on the LEASED UNITS (that Dish is technically still the owner of). I have a BIG problem with this on the CUSTOMER OWNED units. So explain to me why my OWNED 510 should be disabled without refering to the injunction on its face.


It sounds similar to what Apple is doing with iphones. Apple has disabled a few apps that users have put on their phones. Maybe Dish owns the software. They do revise it a lot anyway without asking permission.


----------



## scooper

Curtis52 said:


> It sounds similar to what Apple is doing with iphones. Apple has disabled a few apps that users have put on their phones. Maybe Dish owns the software. They do revise it a lot anyway without asking permission.


My problem is with why the judge has the power to disable private property that does not belong to the infringer (I'm certainly not paying a lease fee on it, nor did I have to return it when I took it out of service).


----------



## Greg Bimson

Curtis52 said:


> If a 501 is disabled it is no longer subject to the injunction. If it is later modified to contain the infringing software again it becomes subject to the injunction again.


Well, I did manage to word that a bit incorrectly...

The "Infringing Products" are always the scope of the injunction. Although disabled, they are still the target of the injunction, but disabled functionality is in compliance with the injunction.

The injunction inhibits a re-enablement of storage to and playback from the hard drive of Infringing Products, as the units are to be disabled for the length of the Time Warp patent.

In other words, if you want to remove Joe Blow's adjudged infringing 501 from the scope of the injunction, you need to move the court to remove it from the injunction. Unilaterally changing the software on Joe Blow's 501 does not change the fact the receiver has already been adjudged as an infringement.


----------



## nobody99

scooper said:


> There's another problem I have with the Injunction on the placed units - The judge is ordering Dish to Disable the DVR functionality. ok - so well and good on the LEASED UNITS (that Dish is technically still the owner of). I have a BIG problem with this on the CUSTOMER OWNED units. So explain to me why my OWNED 510 should be disabled without refering to the injunction on its face.


That is an excellent question, and I'm surprised no one's yet asked it. I would think that if, by chance, the DVR functions ever really do get disabled DISH would be looking at a slam-dunk class-action suit by owners of the equipment.

That said, I don't think the DVR functions will ever actually get disabled. A settlement between DISH and TiVo will come long before then.


----------



## James Long

Disabling the DVR functionality is just a simple way of recalling the product.

The court has to handle the problem as it is presented. If the product is something that cannot be recalled then damages need to be accessed based on that product remaining in use. If DISH would have said they couldn't disable the DVR function remotely we would probably be looking at a recall/exchange program or a court ordered fee that would cover DISH's continuing infringement. (A flat rate payment would be nice ... ongoing monthly payment would be what Tivo would want, except for the day that DISH no longer infringes.)

I wish that the court would have followed that path of allowing DISH to continue to infringe until they modified the DVR software on the infringing products or replaced the receivers with non-infringing models instead of ordering the disablement. A court ordered fee could be paid to compensate for the continued infringement. But the court didn't. The court got the assurance of DISH that the receivers could have their DVR functionality disabled and instead of requiring a recall or ongoing royalty payments the court ordered the DVR functionality disabled.

And then DISH did what they wanted to do anyways ... Contempt of court?

I hope that if the case ever gets to a "shut down" of the 501-508-510-522-625 receivers (all currently being placed but the 522-625 being the most current) we will see a quick exchange program or other immediate compensation - no lawsuit needed (except for those who would not accept a free Hybrid if their Yugo was totaled in an accident). But we're not going to get to a "shut down" ... there are too many ways around that outcome.

In the end DISH will have a DVR product to offer, Tivo will have some compensation and nobody will be 100% happy. Except those who knew nothing about Tivo vs EchoStar and are blissfully ignorant of the years of impending doom.


----------



## Herdfan

scooper said:


> My problem is with why the judge has the power to disable private property that does not belong to the infringer (I'm certainly not paying a lease fee on it, nor did I have to return it when I took it out of service).


I sort of agree with your point here given that it is your unit. However, he is well within his rights to forbid DISH from providing DVR service on that unit.

So at the end of the day, the result could be similar.


----------



## Herdfan

nobody99 said:


> That is an excellent question, and I'm surprised no one's yet asked it. I would think that if, by chance, the DVR functions ever really do get disabled* DISH would be looking at a slam-dunk class-action suit by owners of the equipment.*


Which is yet another reason I don't understand why CE continues to play with fire. At some point, he is going to get burned, and burned badly.


----------



## bobcamp1

Greg Bimson said:


> I think it is a mis-direction, anyway. I believe DISH/SATS knows their design-around infringes, and this action is simply a stalling tactic to drag through the court for years and years.


They are being cautious. They don't know if it infringes or not. After all, they probably thought the original design didn't infringe. It's tough to design a product so that 12 people who haven't been determined yet, who you don't even know and who aren't technically savvy are convinced it doesn't infringe.


----------



## jacmyoung

peak_reception said:


> ... I'll stick to the original bet  thank you; Whether or not EchoStar will be held in Contempt of Court for non-compliance with the Injunction. No doubling up though after the Judge's questions and comments on 9-4. As i say, I've lost some confidence in him. Looks like he might be bending forward for still more shenanigans.


I can of course interpret what you are saying as you have lost some of your confidence in the court system, because the law was not so much on your side in the first place, but only on 9/4 the court demonstrated that point in a limited way, so of course you were disappointed in the court.

If the judge rules in favor of DISH, will you then say you will have lost all your confidence in the court, or admit that your interpretation of the law was wrong in the first place?

Not saying you will lose, only to find out what your thoughts might be in such a scenario.


----------



## jacmyoung

Herdfan said:


> Which is yet another reason I don't understand why CE continues to play with fire. At some point, he is going to get burned, and burned badly.


Please, service "subject to change without notice", stop trying to scare people. Not to mention the DVRs can be replaced.

How many times have you counted service changes or old MPEG2 becoming obsolete? I have yet heard any class actions on such changes.


----------



## jacmyoung

James Long said:


> Disabling the DVR functionality is just a simple way of recalling the product...


If so then the question is if after the products are "recalled", can they be modified and "sent back"?

We know the answer is yes in an actual recall, don't we? I can cite you a few cases.


----------



## bobcamp1

Herdfan said:


> I sort of agree with your point here given that it is your unit. However, he is well within his rights to forbid DISH from providing DVR service on that unit.
> 
> So at the end of the day, the result could be similar.


Actually, I don't think he can. The mere act of providing guide data isn't covered in this patent. That's another trial and something else that can be appealed. Usually, in these types of cases, these "owned" devices are excluded from the injunction and the awarded damages bumped up to compensate. Doesn't DISH have an exclusion for over 100,000 units? I have forgotten why these units were excluded.

It's one of many reasons why products are now being leased instead of being sold.


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## Curtis52

bobcamp1 said:


> Actually, I don't think he can. The mere act of providing guide data isn't covered in this patent. That's another trial and something else that can be appealed. Usually, in these types of cases, these "owned" devices are excluded from the injunction and the awarded damages bumped up to compensate. Doesn't DISH have an exclusion for over 100,000 units? I have forgotten why these units were excluded.


TiVo was awarded $32.66 million as lost profits on 192,708 units. TiVo developed a lost profits model that used a market penetration rate analysis to determine the portion of Dish's DVR sales that would have gone to TiVo had Dish not infringed the patent. Those DVRs are not subject to the disable order and are free of future royalties. If TiVo was awarded lost profits at a similar rate on 4 million DVRs, the amount would be $678 million.


----------



## nobody99

bobcamp1 said:


> Doesn't DISH have an exclusion for over 100,000 units? I have forgotten why these units were excluded.
> 
> It's one of many reasons why products are now being leased instead of being sold.


I think you are correct - there were 192,000 or so units that were fully-paid (i.e., even if they keep the original software, DISH doesn't owe TiVo another penny). Those must be the units that were sold rather than leased.


----------



## Albie

nobody99 said:


> I think you are correct - there were 192,000 or so units that were fully-paid (i.e., even if they keep the original software, DISH doesn't owe TiVo another penny). Those must be the units that were sold rather than leased.


Or was this the number of units actually placed when the original complaint was filed by TIVO?


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## jacmyoung

nobody99 said:


> I think you are correct - there were 192,000 or so units that were fully-paid (i.e., even if they keep the original software, DISH doesn't owe TiVo another penny). Those must be the units that were sold rather than leased.


I don't think so. Those units were based on several model #s for ease of determination. There were certainly leased and owned units among all model #s.

The reason for a separate damage calculation was that TiVo used to sell lifetime (one time) subscriptions. It had nothing to do with lease or own.


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## nobody99

jacmyoung said:


> The only exception will be if TiVo is convinced DISH's new design around never existed. But that is highly unlikely, because TiVo did get to see the new codes from DISH remember, before 5/30? And TiVo never disputed the design around evidence.


I want to touch on this again. Jacmyoung, a lot of people are frustrated with your absolute refusal to stick to the facts.

Two simple paragraphs from the filing are all I need to completely render your statement wrong. And as James has pointed out, when your premise is wrong, so is your conclusion. So please, try to get the facts straight. It will save us all a lot of time and frustration.

Here's some text from TiVo's 5/16 filing.



> The changes described in the opinion letters produced by EchoStar *do not render the products noninfringing, and TiVo has seen nothing so far in its reveiw of source code that changes this. * However, to avoid any doubt, TiVo will complete its analysis of the allegedly new software, and, with the Court's permission, will request written discovery on both the Infringing products and those believed to be only colorably different.
> 
> Footnote 2:
> 
> Although EchoStar voluntarily provided some information about the modified software, it refused to provide other information that TiVo requested. For example, EchoStar provided TiVo access to the relevent source code but *refused to allow TiVo to analyze the code using the same software used by EchoStar to develop the code, which is necessary for the efficient analysis of the code. EchoStar also refused to produce any documents relating to the opinions of counsel, despite its waiver of privilege by producing the opinions.
> 
> *


----------



## CuriousMark

Curtis52 said:


> If a 501 is disabled it is no longer subject to the injunction. If it is later modified to contain the infringing software again it becomes subject to the injunction again.


The original software that was part of infringing units only or any software that still allows the unit to perform an infringement? If the former, then the system allows for merely colorable differences to be used almost as a monopoly style get out of jail free card.


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## scooper

Tivo will be in big trouble with Gemstar (owner of the TV Guide related properties) if they are going on TV Guide data. DIsh HAS reached an agreement with them.


----------



## nobody99

scooper said:


> Tivo will be in big trouble with Gemstar (owner of the TV Guide related properties) if they are going on TV Guide data. DIsh HAS reached an agreement with them.


So has TiVo. Years ago.


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## nobody99

CuriousMark said:


> The original software that was part of infringing units only or any software that still allows the unit to perform an infringement? If the former, then the system allows for merely colorable differences to be used almost as a monopoly style get out of jail free card.


Curtis52 refuses to accept reality. He is wrong. These devices are already adjudicated, and they simply can't have DVR functions. He _opines_ that they can, but that opinion is simply wrong. Don't confuse Curtis constant repetition as fact


----------



## Curtis52

CuriousMark said:


> The original software that was part of infringing units only or any software that still allows the unit to perform an infringement? If the former, then the system allows for merely colorable differences to be used almost as a monopoly style get out of jail free card.


I was talking about returning the original software but more generally, if there is only a colorable difference it might as well be no difference at all. Dish would be in contempt.


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## nobody99

Curtis52 said:


> I was talking about returning the original software but more generally, if there is only a colorable difference it might as well be no difference at all. Dish would be in contempt.


Or, if it is writing television data to the hard disk, regardless of colorable difference, it should be held in contempt.


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## CuriousMark

Curtis52 said:


> I was talking about returning the original software but more generally, if there is only a colorable difference it might as well be no difference at all. Dish would be in contempt.


General business climate and constant feature additions to any competing product pretty much guarantee that any new software would not be the original one. Since determination of colorable differences is always after the fact of the change, there appears to be very little reason for an infringer to not avoid infringement. As long as the infringer is willing to continue litigating, it appears they can go as long as they want. It is still looking a lot like a Monopoly get out of jail free card to me.

It sounds like this general issue is not going to get solved by the courts. I think that the laws need to be either clarified or strengthened to prevent this kind of behavior in the first place.


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## CuriousMark

nobody99 said:


> Curtis52 refuses to accept reality. He is wrong. These devices are already adjudicated, and they simply can't have DVR functions. He _opines_ that they can, but that opinion is simply wrong. Don't confuse Curtis constant repetition as fact


Oh I am not. I am approaching this from the policy viewpoint, not the lower level details of this one case. He may be wrong, but his opinion highlights a general issue of IP that I think needs fixing. Of course the courts cannot do that fixing. It will have to come from congress.


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## nobody99

CuriousMark said:


> Oh I am not. I am approaching this from the policy viewpoint, not the lower level details of this one case. He may be wrong, but his opinion highlights a general issue of IP that I think needs fixing. Of course the courts cannot do that fixing. It will have to come from congress.


I think that this could be easily handled by a Supreme or Appeals court decision that simply says that an adjudicated device remains subject to the injunction regardless of any change to avoid infringement. That way, it will be up to the original court to write the injunction in such a way that if the judge _intends_ a get-out-of-jail card, he can write it into the injunction. That would (properly) allow the injured party to make its case for what metrics are used to judge infringement or non-infringement and what changes are allowed. They can argue it where it should be argued - the original court that hears the case.

In this case, if Judge Folsom had actually _intended_ to allow DISH to download new software and be off the hook, he should have written it into the injunction. It's already there for new products in the "sham" test


----------



## nobody99

Let me add something to my last post that illustrates why I think this is important.

There are some documents that say something along the lines of "DISH concedes that it can, with a software download, disable the DVR functionality of the devices."

The Judge allowed this, rather than recalling the product, so it wouldn't leave people without a receiver. But TiVo had every right to expect that the DVR functions would be effectively recalled and "destroyed."

If no contempt is found, what DISH did was the equivalent of breaking into the warehouse were the "recalled" DVRs were stored, steal them, and return them to customers -- and then having the judge say, "oh, sounds good."

TiVo, in retrospect, should have pushed for a physical recall.


----------



## CuriousMark

nobody99 said:


> TiVo, in retrospect, should have pushed for a physical recall.


I agree with you there and with most of the above, I am just not sure the courts are up to it without legislative direction.


----------



## Greg Bimson

nobody99 said:


> I think that this could be easily handled by a Supreme or Appeals court decision that simply says that an adjudicated device remains subject to the injunction regardless of any change to avoid infringement. That way, it will be up to the original court to write the injunction in such a way that if the judge intends a get-out-of-jail card, he can write it into the injunction.


Which will finally bring me back to this...


STDog said:


> If you has a *Windows* 95 computer, and you installed *Linux* over top of that, would you consider the new *Linux* computer a different product?


This is irrelevant. The reality is that I still have *my computer*, but I've updated it. And if there were an injunction on *my computer* changing the software does not change the fact that it is *my computer*.

The reality is that millions still have *active receivers found infringing*, but they've been updated. And since there is an injunction, to disable *active receivers found infringing*, changing the software does not change the fact that those are *active receivers found infringing*.


STDog said:


> That is Echostar's argument. The new *software* changes the operation enough to be a different product. So the infringing products are no longer in operation. They did vanish.


And Joe Blow's four year old 501 was found infringing but did not vanish, and certainly has DVR functionality.

The reality is that there is not "one case law" that is similar to this; there are many pieces of case law that are applicable.

And it all starts from the fact that when DISH/SATS appealed the case from Judge Folsom's court, the injunction was framed with infringement found on the entire device. Because some of the claims were reversed and remanded does not negate that two claims were upheld. That means the injunction stands as-is, since DISH/SATS did not challenge it.


----------



## jacmyoung

nobody99 said:


> ...If no contempt is found, what DISH did was the equivalent of breaking into the warehouse were the "recalled" DVRs were stored, steal them, and return them to customers -- and then having the judge say, "oh, sounds good."


Actually this is allowed, except that they did not have to break into the warehouse, the warehouse will be their own to have received those recalled DVRs. I can cite you a few cases just that, after the recall, the infringer modified the products in the warehosue and then sent them back to the customers, just fine, as long as the modified products no longer infringed.



> TiVo, in retrospect, should have pushed for a physical recall.


TiVo did try that and was denied by the judge due to objection by DISH.

As far as the discovery between DISH and TiVo, the point was not if TiVo initially thought the discovery was sufficient or not, they were not satisfied with that limited discovery, but the discovery did exist.

The problem is in TiVo's final filing before the 9/4 hearing, they finally fully accepted the evidence, and made a conclusion of mere colorable difference based on the evidence. DISH used the exact same evidence to make an opposite conclusion, that the design around is more than colorable, in fact DISH insists based on the same evidence the design around no longer infringes.

Again once both parties accept the evidence, and are able to make their own conclusions based on such evidence, there is no need for additional discovery.

Can the judge say hey TiVo, why did you accept the evidence in your last filing? I was going to allow you another discovery remember? So please TiVo get yourself together and request another discovery so I can grant it for you.

Can he do that? Of course he can, but DISH can appeal to that decision because it is clearly unfair.

Regardless, even if DISH does not appeal, as long as the design around is true as DISH is claiming, DISH has nothing to fear, another discovery will just delay the thing another 3 months.


----------



## James Long

Tivo did not accept the evidence as complete. All they said was that based on what LIMITED evidence DISH volunteered it appeared that DISH continued to infringe. If Judge Folsom decides that the evidence is not enough to demonstrate infringement Tivo can still seek the full discovery. That is why they defended their "next step" in the hearing. Just in case Judge Folsom decides to work ahead Tivo made it clear that (in their opinion) there wasn't enough evidence so far to find DISH to be non-infringing.


----------



## nobody99

jacmyoung said:


> TiVo did try that and was denied by the judge due to objection by DISH.


That's an awfully circular argument. Both TiVo and Judge Folsom had a reasonable expectation that DISH would shut down the DVR functions. The Judge didn't order a physical recall precisely _because_ he expected his order to be followed.

If he knew his order would be ignored, he would have orderd a physical recall.


----------



## Curtis52

jacmyoung said:


> TiVo did try that and was denied by the judge due to objection by DISH.


The judge could have ordered that each DVR be run over by an Abrams tank. The outcome would have been the same. There would have been a stay and the DVRs would have been modified and no longer infringing and no longer subject to the injunction. Simple.


----------



## nobody99

Curtis52 said:


> The judge could have ordered that each DVR be run over by an Abrams tank. The outcome would have been the same. There would have been a stay and the DVRs would have been modified and no longer infringing and no longer subject to the injunction. Simple.


And yet again he repeats himself, again without any basis in fact.


----------



## Ergan's Toupe

Curtis52 said:


> The judge could have ordered that each DVR be run over by an Abrams tank. /QUOTE]
> 
> Don't be surprised if Folsom actually rules for that. Obviously giving Charlie the benefit of the doubt hasn't exactly worked out the way he thought it would. :lol:


----------



## nobody99

jacmyoung said:


> As far as the discovery between DISH and TiVo, the point was not if TiVo initially thought the discovery was sufficient or not, they were not satisfied with that limited discovery, but the discovery did exist.


There you go again with your mistruths. There was no "discovery."



> Although EchoStar voluntarily provided some information about the modified software


What would going to be more revealin? A court ordered disclosure of information (a.k.a., "discovery") or a voluntary pile of steaming doggy doo doo? DISH undoubtedly made the "voluntary" information about as difficult and meaningless as possible.

So don't try to spin this into something it's not. DISH gave TiVo crap, and everyone knows it.


----------



## Greg Bimson

nobody99 said:


> So don't try to spin this into something it's not. DISH gave TiVo crap, and everyone knows it.


And TiVo analyzed the "crap" and figures they still infringe.


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## James Long

Curtis52 said:


> The judge could have ordered that each DVR be run over by an Abrams tank. The outcome would have been the same. There would have been a stay and the DVRs would have been modified and no longer infringing and no longer subject to the injunction. Simple.


True, although a judge ordering that specific method of destruction probably would raise a few eyebrows. Thanks to the stay DISH had time to make a change. I have no expectation that DISH would have done a recall/exchange program unless they didn't get a stay.


----------



## Greg Bimson

Curtis52 said:


> There would have been a stay and the DVRs would have been modified and no longer infringing and no longer subject to the injunction. Simple.


Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.


----------



## Curtis52

Greg Bimson said:


> Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.


Interesting trivia but not very useful. I doubt whether anyone cares.


----------



## Albie

Greg Bimson said:


> Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.


Possibly because there has never been a case where the adjudicated device could be modified without great inconvenience to the customer?

I believe this is the real issue Judge Folsom is wrestling with as he knows that in the end this case is likely going to be the standard for patent cases where you have a physical device that is heavily intertwined with intellectual property. None of the previous case law has dealt with such a beast. NTP v RIM was close but it settled and even then it was really only about the IP as NTP is strictly an IP company and had no claims against the Blackberry device, just the software that it operated on.


----------



## James Long

Greg Bimson said:


> Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.


Would Footprint 2.0 qualify? Or are we splitting hairs between the infringing product being a device vs a service?

Once the "on the face of the injunction" portion of the case is complete the rest should go quite smoothly. DISH getting past the current hurdle is key.


----------



## Greg Bimson

Greg Bimson said:


> Yet there has never been a ruling where an adjudicated device installed in customer homes was modified and no longer subject to an injunction.





Curtis52 said:


> Interesting trivia but not very useful. I doubt whether anyone cares.


Important trivia as the court will care; in order to find no contempt, it would be precedential as this would be a first ruling of this kind. After all, there have been rulings where a party subject to an order must follow it, or they end up in contempt.


----------



## Greg Bimson

James Long said:


> Would Footprint 2.0 qualify? Or are we splitting Hairs between the infringing product being a device vs a service?


I'd think you'd have to split hairs on that one. The product is simply a process encoded in software. Remove the infringing software from the service, and you are out of contempt. Even the injunction allowed for that change.


----------



## James Long

Greg Bimson said:


> James Long said:
> 
> 
> 
> Would Footprint 2.0 qualify? Or are we splitting Hairs between the infringing product being a device vs a service?
> 
> 
> 
> I'd think you'd have to split hairs on that one. The product is simply a process encoded in software. Remove the infringing software from the service, and you are out of contempt. Even the injunction allowed for that change.
Click to expand...

The problem in Tivo vs Echostar being no explicit "as configured" definition and an explicit "disable" command. Perhaps with better notification and less bravado the "disable" command wouldn't be an issue now ... clarification could have been sought before contempt.

The lack of an explicit "as configured" description has been worked around before (removing the offending part and using a non-infringing part in Safety 1st). Modifying a placed product is Footprint 2.0. Reusing existing product names is StarBrite. Tivo vs Echostar is made up of elements of other cases that have (eventually) been resolved in favor of the plaintiff _as long as their eventual product did not actually infringe_.

Simply disobeying a clear order of the court? Tivo should like the precedents on that one. That is where Judge Folsom (in my opinion) was looking for closer cases, preferably something with infringements involved so he wouldn't have to apply the very general legal principle of Walker to his case. Two weeks later and no ruling ... so it is obviously not a "simple" issue he can jot out in a couple of hours between hearings. I hope he gets to it by the end of the month.


----------



## peak_reception

jacmyoung said:


> I can of course interpret what you are saying as you have lost some of your confidence in the court system, because the law was not so much on your side in the first place, but only on 9/4 the court demonstrated that point in a limited way, so of course you were disappointed in the court.


 :lol: I can assure you that my loss of confidence in the court system far predates 9-4-08 and TiVo v. EchoStar.

As for the law being on my side or not (insofar as our "bet" is concerned), that is still an open question, yet to be decided. Don't worry, I'll not deny you your gloating if it goes your way.  Would such an outcome further erode my confidence in our courts system. Yes.

I'll even concede (just my opinion) that the case law falls more heavily on EchoStar's side, or at least they've made a stronger case for it, _all things being equal_. TexasAG convinced me of that way back when. But all things are *not* equal in this case for two key reasons: 1) Dish flagrantly disregarded the Judge's explicit and unambiguous Injunction. 2) Dish has acted in bad faith in numerous ways throughout the litigation. If Judge Folsom turns a blind eye to both of these then he is not presiding over a fair process, imo.



> If the judge rules in favor of DISH, will you then say you will have lost all your confidence in the court, or admit that your interpretation of the law was wrong in the first place?


 Would such an outcome further erode my confidence in our courts system. Yes.


> Not saying you will lose, only to find out what your thoughts might be in such a scenario.


 You have your answer. Hypothetically of course.


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## Curtis52

Greg Bimson said:


> Important trivia as the court will care; in order to find no contempt, it would be precedential as this would be a first ruling of this kind. After all, there have been rulings where a party subject to an order must follow it, or they end up in contempt.


I don't think the court cares where a modification occurs. I haven't seen any cases where the court asked "where did you do this modification?" The only thing it cares about is the extent and nature of the modification.


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## jacmyoung

peak_reception said:


> :lol: I can assure you that my loss of confidence in the court system far predates 9-4-08 and TiVo v. EchoStar.
> 
> As for the law being on my side or not (insofar as our "bet" is concerned), that is still an open question, yet to be decided. Don't worry, I'll not deny you your gloating if it goes your way.  Would such an outcome further erode my confidence in our courts system. Yes.
> 
> I'll even concede (just my opinion) that the case law falls more heavily on EchoStar's side, or at least they've made a stronger case for it, _all things being equal_. TexasAG convinced me of that way back when. But all things are *not* equal in this case for two key reasons: 1) Dish flagrantly disregarded the Judge's explicit and unambiguous Injunction. 2) Dish has acted in bad faith in numerous ways throughout the litigation. If Judge Folsom turns a blind eye to both of these then he is not presiding over a fair process, imo.
> 
> Would such an outcome further erode my confidence in our courts system. Yes.
> You have your answer. Hypothetically of course.


Very well, in fairness, I will tell you mine.

If the court finds DISH in contempt, *and* if the appeals court upholds the ruling, I will admit my reading of the law was wrong, and my confidence in our courts will be as high as before

Of course when I speak of my confidence in our courts, it is relative. I can understand when you say you have less confidence in one of our branches of our government, I hope such feeling did not come from just this one case, I can't blame you.

When I say I have full confidence in our court system, it is also relative, can our legal system be improved? Of course, no doubt, but compare to the other two branches, I think we are lucky to have a court system we have today, you know what I mean


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## scooper

James Long said:


> Would Footprint 2.0 qualify? Or are we splitting hairs between the infringing product being a device vs a service?


IMO - Footprint2.0 isn't quite the same thing - A DBS receiver / DVR is composed of both hardware and software components, each of which is essential, but making a change in one can effect the other. Footprint was only about software, plus there was no way to "enforce" the change going out to be applied.



James Long said:


> Once the "on the face of the injunction" portion of the case is complete the rest should go quite smoothly. DISH getting past the current hurdle is key.


And the issue here is whether making the adjucicated devices non-infringing via software updates is within the spirit of the injunction / previous case law. I think it should.


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## TBoneit

Greg Bimson said:


> And TiVo analyzed the "crap" and figures they still infringe.


OTOH no matter what they would have to say that it infringes. It wouldn't matter if E* had brought in a new team that started with no code and was only told these are the Tivo patents, Be sure not to infringe. These are the features we want and these are the error messages we use and these are the menus we want to keep. Tivo would still be saying they infringe. Saying anything else would damage their case so it won't be said no matter what.

Moving beyond that Nowhere that I've seen has it been proven that E* knowingly infringed maliciously. It has been proved that they infringed. It hasn't been proved that they didn't infringe by looking at the capabilities of the Broadcom chip and write software to use those features unknowingly.

I've seen copyright infringement that happened against family. A family member created series of prints that sold well. Someone else went out and created extremely similar prints to sell. That is knowingly done. If the other person had a large line of prints and a few were similar then that would be IMHO unknowingly violating the copyright. In the first case a cease and desist letter was ignored. In the second case it would most likely have been obeyed and a applogy sent to teh family member.

Cheers


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## jacmyoung

scooper said:


> IMO - Footprint2.0 isn't quite the same thing - A DBS receiver / DVR is composed of both hardware and software components, each of which is essential, but making a change in one can effect the other. Footprint was only about software, plus there was no way to "enforce" the change going out to be applied.
> 
> And the issue here is whether making the adjucicated devices non-infringing via software updates is within the spirit of the injunction / previous case law. I think it should.


The Footprint2.0 service definitely was a combination of hardware and software service. One crucial point of contention was where the Internet traffic control (caching) was formed. The patentee had the right of the patent that performed the caching at the service headend, supposedly a more efficient method, and Footprint2.0 was found to infringe with a similar method. The software change moved the caching from the service headend to the customers' own server ends, and avoided a contempt.

The Footprint2.0 case is a perfect example of how a software update may modify an entire adjudicated service already at the hands of the end users to work around the patent without disabling the service.

Another case Greg finally dug up was one case I quoted about an infringing egg processing method, an infringement case in a more traditional sense. In that case the defendant's egg processing method was found to infringe on the patent, and an injunction was placed to stop that process at the plant. When the infringer said they modified the process and did not intent to stop the business, the patentee asked for contempt ruling by the court. The court looked at the modified process presented by the infringer and said no contempt, because the modification established ground that it might no longer infringe. The change made in that process was only one very small step of the whole egg processing routine.

When Greg dug up that case of mine, he highlighted the reason why he believed there was no contempt, as he indicated, because in that case the infringer did try to notify their modification in "a series of motions" to the court.

But he did not realize the so called "a series of motions" was not that different than DISH's "a series of filings and responses" since mid 5/08, the infringer in that case simply presented the new design around evidence to the court and to the plaintiff several times, *after* they had completed the design around.

And what was more interesting was the patentee in that food processing case did not even try to examine the modified process, they only theorized why the modified egg processing method still infringed, and the court said no, that did not prove with clear and convincing evidence that it still infringed.


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## Greg Bimson

jacmyoung said:


> When Greg dug up that case of mine, he highlighted the reason why he believed there was no contempt, as he indicated, because in that case the infringer did try to notify their modification in "a series of motions" to the court.
> 
> But he did not realize the so called "a series of motions" was not that different than DISH's "a series of filings and responses" since mid 5/08, the infringer in that case simply presented the new design around evidence to the court and to the plaintiff several times, after they had completed the design around.


A motion is a petition to move the court for a ruling.

DISH/SATS has not moved the court to do anything. They are defending against TiVo's motion for contempt. Big difference.

I take that back. DISH/SATS did file a motion for clarification regarding the warranty replacements, then asked for the motion to be dismissed.

In "egg patent" case (one side is Barstow Foods, the other is Michael's Foods) the *process* was enjoined, as it was a process patent that was violated. It appears the infringer filed motions to get their work-around implemented. It also appears that the patentee did not like how the court seemed to be siding with the infringer, so they filed a motion for contempt.

The infringer had detailed analysis to the court as to why their new process, which only added a step prior to their old infringing process, no longer infringed. The patentee didn't have much of anything regarding proof that the new process still infringed.

Contempt denied.


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## jacmyoung

Greg Bimson said:


> A motion is a petition to move the court for a ruling.
> 
> DISH/SATS has not moved the court to do anything. They are defending against TiVo's motion for contempt. Big difference.
> 
> I take that back. DISH/SATS did file a motion for clarification regarding the warranty replacements, then asked for the motion to be dismissed.
> 
> In "egg patent" case (one side is Barstow Foods, the other is Michael's Foods) the *process* was enjoined, as it was a process patent that was violated. It appears the infringer filed motions to get their work-around implemented. It also appears that the patentee did not like how the court seemed to be siding with the infringer, so they filed a motion for contempt.
> 
> The infringer had detailed analysis to the court as to why their new process, which only added a step prior to their old infringing process, no longer infringed. The patentee didn't have much of anything regarding proof that the new process still infringed.
> 
> Contempt denied.


A contempt motion is always made by the patentee, not the infringer. The so called "a series of motions" stated in that case was not the infringer's motions for no contempt, an infringer cannot motion for no contempt. Only the patentee may motion the court to compel the infringer to show cause why the infringer is not in contempt. So those so called "motions" was the infringer's responses to the court after the patentee motioned for a contempt proceeding against the infringer.

If your argument is that the only reason the infringer getting away with a contempt in that case was because they motioned the court in several formal presentations to demonstrate the evidence of their modification, then I can tell you such process is never required, and is certainly not required here, because the order does not require such motions.

But your point is moot anyway, because when evidence of a modification is presented by the infringer at a contempt proceeding, such evidence must be first looked at, regardless in which fashion such evidence is presented to the court, as long as such evidence is a matter of the court records, reviewed and responded to by all parties that followed proper procedures. This is clearly done before 9/4, as part of the court records.

Now if the evidence is presented without any discovery (as only he says), the patentee can certainly contest it. And the court can grant the patentee's wish for a discovery of the evidence. But if the patentee does not dispute the evidence, instead uses the evidence to draw their own conclusions (such as only colorable change), then the court certainly can make a decision as which side's conclusion to agree to or prefer, or in the case the court cannot agree to either side, the defendant gets the benefit still, with a no contempt found.

Because in a contempt proceeding, the patentee must prove with clear and convincing evidence the infringer still infringes.

Several times you and others completely dismissed the discovery occurred between DISH and TiVo on 5/12/08(?) as a complete lie by DISH, because TiVo said initially that based on that discovery DISH's design around still infringed, and TiVo then said but the discovery was not good enough, "to be sure" they wanted to seek another discovery through the court.

First, just because you did not like that discovery dose not mean the discovery did not happen, the discovery clearly happened, both parties said it happened.

Secondly, TiVo needed to make up their mind, either they believed after seeing the evidence from that discovery it was clear to them the design around still infringed, or TiVo can said hey we could not make that decision yet, we did not have enough evidence from that discovery to say if the design around still infringed or not, so we wanted more discovery.

But TiVo did say based on the evidence they saw from the discovery they were able to make the conclusion the design around still infringed. Then there was no reason for additional discovery, the evidence was apparently good enough for TiVo to prove infringement, therefore it was time for TiVo to prove with clear and convincing evidence from that discovery that the design around still infringes.

Thirdly, in the latest filing before the 9/4 hearing, it was clear TiVo accepted DISH's design around evidence and ran with it. So it is my opinion continued discovery will be unnecessary and also unfair.

Can the judge say hey there was never a discovery under my order, and I don't care what each party said so far, there has to be a discovery under my watch anyway? Of course he can, but in that case, DISH should appeal.

Again, even if DISH does not appeal, as long as their design around evidence is solid, they have nothing to fear, another discovery will only mean another delay.


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## Greg Bimson

The dissertation...


jacmyoung said:


> First, just because you did not like that discovery dose not mean the discovery did not happen, the discovery clearly happened, both parties said it happened.


Never said it didn't. Of course, when in court, one presents their side of the story. So DISH/SATS only presented *evidence* that supported their non-infringement. That is far from "discovery", though that is what DISH/SATS wants to call it.


jacmyoung said:


> Secondly, TiVo needed to make up their mind, either they believed after seeing the evidence from that discovery it was clear to them the design around still infringed, or TiVo can said hey we could not make that decision yet, we did not have enough evidence from that discovery to say if the design around still infringed or not, so we wanted more discovery.


It's like having Elle McPherson claiming she's naked in your bed. She pulls the covers halfway down and you get to see breasts. But you still don't know if she is naked until you remove all of the covers.

DISH/SATS presented they no longer infringe with evidence that supports their side. TiVo still says what they've seen is actually clothed; it still infringes and they want more proof...


jacmyoung said:


> Thirdly, in the latest filing before the 9/4 hearing, it was clear TiVo accepted DISH's design around evidence and ran with it. So it is my opinion continued discovery will be unnecessary and also unfair.


Discovery will automatically be needed if the design-around is questioned:


jacmyoung said:


> But your point is moot anyway, because when evidence of a modification is presented by the infringer at a contempt proceeding, such evidence must be first looked at, regardless in which fashion such evidence is presented to the court, as long as such evidence is a matter of the court records, reviewed and responded to by all parties that followed proper procedures. This is clearly done before 9/4, as part of the court records.


Only if a new standard is applied, to device which have already been adjudicated. You have your opinion; I have mine.


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## Greg Bimson

jacmyoung said:


> A contempt motion is always made by the patentee, not the infringer. The so called "a series of motions" stated in that case was not the infringer's motions for no contempt, an infringer cannot motion for no contempt.


C'mon, jac. Let's talk court talk here...

DISH/SATS wanted to make sure they weren't in violation of the injunction by replacing 721, 921 and 942 with like boxes. They filed a motion of clarification. If the motion were granted, it makes their warranty program on those three receivers safe from the injunction.

DISH/SATS did not file a "motion for no contempt". But they could ask the court to make sure their "new process" should not apply to the current injunction.

I believe that is what the infringer did in Barstow Foods v. Michael's Foods. A motion for clarification or motion for modification is the "series of motions" that the infringer would make to get the process ruled outside of the injunction.


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## Ergan's Toupe

jacmyoung said:


> Again, even if DISH does not appeal, as long as their design around evidence is solid, they have nothing to fear, another discovery will only mean another delay.


You must have went to the same law school Charlie did. :lol:


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## jacmyoung

Greg Bimson said:


> The dissertation...Never said it didn't. Of course, when in court, one presents their side of the story. So DISH/SATS only presented *evidence* that supported their non-infringement. That is far from "discovery", though that is what DISH/SATS wants to call it.


No DISH did not "want to" call it a discovery, both DISH and TiVo agreed such discovery took place, only that TiVo believed based on that discovery and the evidence of it, the design around still infringed, and DISH believed otherwise, so the judge has enough to decided who he will agree to.



> It's like having Elle McPherson claiming she's naked in your bed. She pulls the covers halfway down and you get to see breasts. But you still don't know if she is naked until you remove all of the covers.


Very cute, the problem with TiVo is they must prove with clear and convincing evidene that she was fully clothed, and DISH only needs to established the doubt whether she was fully clothed by demonstrating they had seen her breasts, therefore was not "fully clothed". I did not start it.



> DISH/SATS presented they no longer infringe with evidence that supports their side. TiVo still says what they've seen is actually clothed; it still infringes and they want more proof...Discovery will automatically be needed if the design-around is questioned:Only if a new standard is applied, to device which have already been adjudicated. You have your opinion; I have mine.


TiVo did not say they wanted more proof after the 9/4 ruling, please read the 9/4 transcript again, when the judge asked TiVo if he found DISH not in contempt, what did that leave them, Mr. Chu said there were two hearings TiVo asked for, one was 9/4, the other was a second hearing on the "new products", meaning not the 4 million DVRs already on the list and at the hands of the end users. Meaning TiVo only planned to address those 4 million DVRs on 9/4 not beyond, whether contempt or not.

Of course if a contempt, the 4 million DVRs will not be addressed again either, they are done.

TiVo one time wanted more discovery but it was denied by the judge, and the judge even said after 9/4 ruling TiVo might seek another discovery, but on 9/4 TiVo's story changed, Mr. Chu had clearly indicated the next hearing, if they will seek, will be for "new products". The DVRs on the list and at the hands of the end users will be addressed already, contempt or not, TiVo will not try to address them again. And that is actually the right way to do it. Once a contempt or no contempt ruling is out on the accused products, it is usually done with, not addressed again. Other products can then be addressed, if there are good justifications to do so.


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## jacmyoung

Greg Bimson said:


> C'mon, jac. Let's talk court talk here...
> 
> DISH/SATS wanted to make sure they weren't in violation of the injunction by replacing 721, 921 and 942 with like boxes. They filed a motion of clarification. If the motion were granted, it makes their warranty program on those three receivers safe from the injunction.
> 
> DISH/SATS did not file a "motion for no contempt". But they could ask the court to make sure their "new process" should not apply to the current injunction.
> 
> I believe that is what the infringer did in Barstow Foods v. Michael's Foods. A motion for clarification or motion for modification is the "series of motions" that the infringer would make to get the process ruled outside of the injunction.


No true, you still did not undertand how contempt proceedings work. The patentee is always the mover, it is the patentee's job to initiate a contempt proceeding, and the infringer only responds to it.

If the patentee decides not to initiate such proceeding, the infringer can and will not do anything, the infringer can continue to do whatever it is doing without any threat from the court.

The court dose not initiate any contempt proceedings, only the patentees do, and when they do, the court will consider them. All contempt proceedings in patent cases are of the same procedure. No exceptions.

DISH motioned the court to clarify the 942, 721 issues only because TiVo motioned a contempt on such issue, remember there were three items TiVo sought on 5/30?

1) Contempt on the face,
2) The 942, 721 issue,
3) An additional discovery on the new software infringement issue.

1) and 2) were granted, 3) was denied.

DISH was the non-mover, DISH only responded. Of course DISH may motion the court on issues for the purpose of responding to TiVo's motions.

But TiVo was the one who initiated all this, all patentees do, not the other way around.


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## Greg Bimson

jacmyoung said:


> No true, you still did not undertand how contempt proceedings work. The patentee is always the mover, it is the patentee's job to initiate a contempt proceeding, and the infringer only responds to it.
> 
> If the patentee decides not to initiate such proceeding, the infringer can and will not do anything, the infringer can continue to do whatever it is doing without any threat from the court.
> 
> The court dose not initiate any contempt proceedings, only the patentees do, and when they do, the court will consider them. All contempt proceedings in patent cases are of the same procedure. No exceptions.


Please re-read what I wrote. I never said DISH/SATS would be the mover in a contempt proceeding. They were the mover in the warranty exchange program.


jacmyoung said:


> DISH motioned the court to clarify the 942, 721 issues only because TiVo motioned a contempt on such issue, remember there were three items TiVo sought on 5/30?
> 
> 1) Contempt on the face,
> 2) The 942, 721 issue,
> 3) An additional discovery on the new software infringement issue.


Wrong.

1) Contempt on the face,
2) *Damages*,
3) An additional discovery on the new software infringement issue.

It is DISH/SATS that moved for the warranty program, the Advance Exchange Program.

TiVo responded in opposition to the motion DISH/SATS brought up, which was the warranty program. Later, DISH/SATS asked that the motion be dismissed.


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## Curtis52

Here is the beginning of Dish's repair motion:


> The EchoStar defendants (collectively, "EchoStar") respectfully *move* the Court for interpretation of how the Permanent Injunction (Docket No. 806) applies to the repair of DVR- enabled set-top boxes exempted from the Injunction.


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## James Long

Greg Bimson said:


> DISH/SATS did not file a "motion for no contempt". But they could ask the court to make sure their "new process" should not apply to the current injunction.


Or vice versa. 



Greg Bimson said:


> jacmyoung said:
> 
> 
> 
> DISH motioned the court to clarify the 942, 721 issues only because TiVo motioned a contempt on such issue, remember there were three items TiVo sought on 5/30?
> 
> 1) Contempt on the face,
> 2) The 942, 721 issue,
> 3) An additional discovery on the new software infringement issue.
> 
> 
> 
> Wrong.
> 
> 1) Contempt on the face,
> 2) *Damages*,
> 3) An additional discovery on the new software infringement issue.
> 
> It is DISH/SATS that moved for the warranty program, the Advance Exchange Program.
Click to expand...

I believe Tivo considered the warranty program to be new placements of Infringing Products - and in the case of the 721/921/942s these "new placements" were of products that still infringed. The clarification that DISH sought was if already placed products that infringed could be replaced with "newly placed" products of the same model that infringed. DISH that turned that question into a motion (at least as far as the warrantee replacement program goes). Tivo was limited to the question of contempt on the face and damages. Tivo's request for additional discovery on infringement was denied.

Part of Tivo's complaint "on the face" is that DISH did not disable the DVR functionality ... the other part of the complaint "on the face" is that DISH has placed new "Infringing Products" (not just 721/921/942s) after the injunction went into effect. Tivo's "new placement" complaint should be considered part of the "on the face" motion. Not a separate motion.


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## peak_reception

> It's like having Elle McPherson claiming she's naked in your bed. She pulls the covers halfway down and you get to see breasts. But you still don't know if she is naked until you remove all of the covers.





> ...the problem with TiVo is they must prove with clear and convincing evidence that she was fully clothed, and DISH only needs to established the doubt whether she was fully clothed by demonstrating they had seen her breasts, therefore was not "fully clothed".


 Wow! This litigation has had a lot of twists and turns but the one thing I never imagined it could be is sexually arousing... until now


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## phrelin

peak_reception said:


> Wow! This litigation has had a lot of twists and turns but the one thing I never imagined it could be is sexually arousing... until now


Wow, and I thought this thread would reach 1000 posts without sex, drugs and rock and roll.


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## Greg Bimson

Why not? We've discussed everything else!!!


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## jacmyoung

Greg Bimson said:


> Why not? We've discussed everything else!!!


The bottomline is a contempt proceeding is always raised by the patentee, there is no reason for the infringer to move, because if you are the mover, you must prove with clear and convincing evidence, if you are a non-mover, the other party has a much higher burden of proof.

Of course in the case of Elle McPherson, I cetainly will not be surprised everyone wanted to be the mover


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## James Long

The bottom line is that DISH didn't have to start a contempt proceeding ("Motion for Contempt") ... they could have filed a motion for clarification presenting their modified products to the court and asking for a ruling removing their existing placed 501/508/510/522/625 receivers from the scope of the injunction as long as they had software installed that was designed to avoid the patent in question.

Open and honest communication with the court. Too much to ask for?

DISH's motion for clarification on the replacement program is an excellent example of such a motion. It isn't a contempt proceeding as the motion isn't to find DISH in contempt (or not) of the injunction. It is a simple question of clarification.


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## jacmyoung

James Long said:


> The bottom line is that DISH didn't have to start a contempt proceeding ("Motion for Contempt")


Not that they didn't have to but they couldn't, the right for motion for a contempt proceeding is given to the winning patentee, not the infringer. Besides no infringer will want to seek a contempt on himself.



> ... they could have filed a motion for clarification presenting their modified products to the court and asking for a ruling removing their existing placed 501/508/510/522/625 receivers from the scope of the injunction as long as they had software installed that was designed to avoid the patent in question.


They actually did so to some degree, when initially TiVo wanted to "recall" all the listed DVR models already in the pipeline but not yet at the hands of the end users, DISH asked to have that requirement removed on the basis that those DVRs could receive a new software that might not be infringing, and the judge agreed.



> Open and honest communication with the court. Too much to ask for?


I agree DISH should have done so as the judge asked the same question on 9/4. But if you look at the timeline, to be "open and honest" DISH would have to inform the judge right after the injunction was issued, or right at the time DISH was appealing the judgement, as the judge told the DISH lawyer on 9/4. That was around what 9/06?

DISH wasn't even sure they could have designed around at that time, they had the idea on the paper, but the design around was not completed in the field until I think 06/07? and by that time parties were simply waiting for the appeals court's ruling, which did not come until many months later.



> DISH's motion for clarification on the replacement program is an excellent example of such a motion. It isn't a contempt proceeding as the motion isn't to find DISH in contempt (or not) of the injunction. It is a simple question of clarification.


Actually it was a part of the contempt proceeding, both issues on the agenda on 9/4 were part of the contempt proceeding, initiated by the patentee, not by the infringer. DISH's motion for clarification on the replacement program was simply to find out what was the proper way to meet part of the injunction requirement.

A part of the injunction says "except 197,000 units..." that were not under the "disabling" requirement, but how to replace broken units from those 197,000 units was in dispute, TiVo accused DISH of violating the rules by interpreting the replacement rules differently, as a result DISH motioned the court for clarification.

But the point is moot anyway, the judge said he did not necessarily disagree with DISH why he was not informed. There is no such requirement in his order.

Similarly, the question of why DISH did not inform the court of their intention to file a new suit in the DE court, while did not pass the fairness test, still was not something the judge could do, as he said it was up to the DE court not him to make the decision.

From the standpoint of open, honest and fair acts, the judge had long concluded neither party had met the standards. This case as the judge pointed out, had broken many records, in the number of motions, delays, accusations of improper conducts by either party. Part of why the judge denied TiVo's request for treble damages and attorney fees, because he thought the parties were equally at fault on many things.


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## James Long

jacmyoung, once again you are redefining the truth so it fits your reality. There are too many redefinitions in your post to weed through it. Suffice it to say, you're wrong.


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## jacmyoung

There are actually down side of informing others of a modification.

As an example, when DISH provided TiVo with the new software codes on 5/12/08, it did nothing to stop TiVo's effort to find DISH in contempt, simply because:

1) TiVo did not think it mattered as far as they considered a violation on the face of the injunction, and
2) TiVo very quickly dismissed the new software evidence and declared it still infringed.

There were no benefits to DISH's informing the modification at all. The patentees will do what they see fit, they have the right to bring up contempt actions against the infringers, it is not up to the infringers to try to avoid them.

The Circuit Court case below has been widely cited in many patent cases, and it demonstrated even when the infringer went above and beyond to inform the court of a modification, the effort could be fruitless:

http://www.ll.georgetown.edu/federal/judicial/fed/opinions/04opinions/04-1014.html

"Although we are vacating the injunction and remanding to the district court, we are unable to grant IXYS all the relief it has requested with respect to the injunction. IXYS has tried repeatedly, and unsuccessfully, to bring its redesigned products into the case. First, IXYS notified IR of its modified design, but IR declined to file a supplemental pleading to allege infringement of the redesigned devices, which were introduced after IR filed its complaint. Then, in opposition to IR's motion for summary judgment, IXYS asserted that the redesigned products should not be the subject of contempt proceedings because, in IXYS's view, there is a "substantial open issue" as to whether they infringe. See KSM, 776 F.2d at 1532 (holding that the test for whether contempt proceedings are appropriate is whether there are substantial open issues with respect to infringement). Consequently, IXYS urged the district court to limit the injunction to the adjudicated products and any products introduced after the effective date of the judgment that are no more than colorably different from the adjudicated products. IXYS's proposed judgment would have effectively excluded from the scope of the injunction devices made according to IXYS's modified design.

The district court properly denied IXYS's request to so limit the injunction. Supplemental pleadings are optional, see Fed. R. Civ. P. 15(d), and thus neither IXYS nor the district court had the authority to force IR to supplement its complaint to allege infringement by the redesigned products. IR chose not to accuse the redesigned products in this action, and therefore it would have been inappropriate for the district court to enter what would amount to a non-infringement judgment with respect to those products.

*IXYS contends that as a matter of fairness contempt proceedings should be unavailable with respect to pre-judgment devices not accused of infringement in the underlying action, and thus such devices should be affirmatively excluded from the scope of an injunction. This court has never so held, and we decline to do so now. If in the future IR chooses to bring a contempt action against IXYS's modified products, the district court at that time must determine whether contempt proceedings are appropriate by applying the standard established by this court in KSM.* 776 F.2d at 1532; see Arbek Mfg., Inc. v. Moazzam, 55 F.3d 1567, 1569-70 (Fed. Cir. 1995) (affirming trial court's denial of a contempt motion when there were substantial open infringement issues to be litigated). *It would have been improper for the district court to address that issue until or unless it was properly before the court.*"

As the appeals court said, there are things the infringer cannot exclude from an injunction if the patentee does not respond to such effort, but the infringer should not try so hard to get their modified products excluded anyway because if in the future a contempt action is brought up against such modified products, the uniform standards governing the contempt proceedings will be applied at that time.

In a sense, the Circuit Court was saying the infringer does not have to be so concerned about the language of the injunction, as long as the infringement no longer exists, the patentee can bring up contempt actions all they want, there should be no fear of being in contempt.

That is because, as the Circuit Court stated:

"...the only acts the injunction may prohibit are infringement of the patent by the adjudicated devices and infringement by devices not more than colorably different from the adjudicated devices. In order to comply with Rule 65(d), the injunction should explicitly proscribe only those specific acts."

The act of using the DVR functions under the new design around, if no longer an infringement of the patent, cannot be prohibited by the injunction because the injunction can only prohibit acts of infringement of the patent.

Therefore, if the judge finds the new design around more than colorable, he will have to, just like the judge in the StarBrite case, find a way to explain his injunction so that the infringer is not in violation on its face, or to say the infringer is in compliance of the letter (not just the spirit) of his order. I know I know, such "letter of the order" was "not on the agenda", we will just have to wait and see.


----------



## James Long

jacmyoung said:


> "...the only acts the injunction may prohibit are infringement of the patent by the adjudicated devices and infringement by devices not more than colorably different from the adjudicated devices. In order to comply with Rule 65(d), the injunction should explicitly proscribe only those specific acts."


So after thousands of posts your argument returns to attacking the injunction as non-compliant with Rule 65(d). Something that DISH had an opportunity to complain about at the appeals level and failed to do. Even in the recent September 4th hearing DISH defends the injunction as being correct.

The injunction, being admittedly written correctly, orders disablement of the DVR functionality on all but ~129k existing placed products of specific model numbers.

If DISH does not wish to follow the injunction to the letter they need to challenge the injunction via the court system. That is the _*proper*_ way per the Supreme Court. DISH's actions are improper.


> The act of using the DVR functions under the new design around, if no longer an infringement of the patent, cannot be prohibited by the injunction because the injunction can only prohibit acts of infringement of the patent.


That is for a court to decide, not for an infringer to decide. Per the Supreme Court.

So how did Starbrite make out at the circuit court level? Contempt?


----------



## jacmyoung

James Long said:


> So after thousands of posts your argument returns to attacking the injunction as non-compliant with Rule 65(d). Something that DISH had an opportunity to complain about at the appeals level and failed to do. Even in the recent September 4th hearing DISH defends the injunction as being correct.


The problem is after thousands of posts you still tried to put words in my mouth. There was no attacking the injunction, this injunction complies with Rule 65(d) just fine, how so? Because TiVo's interpretation of the order is wrong, DISH's interpretation is correct.



> The injunction, being admittedly written correctly, orders disablement of the DVR functionality on all but ~129k existing placed products of specific model numbers.


The DVR functions to be disabled, were the ones under the old design, because those ones were adjudicated to have infringed, therefore the continued use of them would have been an act of infringement of the patent, and therefore had to be prohibited.

The DVR functions under the new design, were never adjudicated before, therefore if the new design is found to be more than colorable, the act of using those functions may not be considered an act of infringement of the patent, therefore may not be prohibited.



> If DISH does not wish to follow the injunction to the letter they need to challenge the injunction via the court system. That is the _*proper*_ way per the Supreme Court. DISH's actions are improper.


Only if TiVo's interpretation is correct, but the judge clearly said TiVo could be wrong when he asked, what if I found DISH not in violation on the face of my order?



> That is for a court to decide, not for an infringer to decide. Per the Supreme Court.


Of course, that is what the anticipated ruling is all about.



> So how did Starbrite make out at the circuit court level? Contempt?


I don't think the no contempt ruling was ever appealed in that case, probably because the patentee recognized they had no chance, given the uniform standards established by the Circuit.


----------



## James Long

jacmyoung said:


> So how did Starbrite make out at the circuit court level? Contempt?
> 
> 
> 
> I don't think the no contempt ruling was ever appealed in that case, probably because the patentee recognized they had no chance, given the uniform standards established by the Circuit.
Click to expand...

Non responsive. Indicative of a failure to read.


----------



## Greg Bimson

jacmyoung said:


> That is because, as the Circuit Court stated:
> 
> "...the only acts the injunction may prohibit are infringement of the patent by the adjudicated devices and infringement by devices not more than colorably different from the adjudicated devices. In order to comply with Rule 65(d), the injunction should explicitly proscribe only those specific acts."
> 
> The act of using the DVR functions under the new design around, if no longer an infringement of the patent, cannot be prohibited by the injunction because the injunction can only prohibit acts of infringement of the patent.





James Long said:


> So after thousands of posts your argument returns to attacking the injunction as non-compliant with Rule 65(d). Something that DISH had an opportunity to complain about at the appeals level and failed to do. Even in the recent September 4th hearing DISH defends the injunction as being correct.


jac, I think you have missed something here.

You are saying that "the injunction can only prohibit acts of infringement of the patent." However, the injunction clearly states that the Infringing Products in customers' hands as of 8 September, 2006 must be disabled. Even if the Infringing Products no longer infringe, one cannot use the defense that the injunction, pursuant to Rule 65(d), only can prevent infringement.

That would be a collateral attack on the injunction.

Think of it this way. The injunction was written with three orders: damages, preventing future infringement, and disabling the installed products adjudicated infringing as of 8 September, 2006. If there was a fourth order that stated Charlie Ergen was to shave his head bald, one cannot use the defense that the injunction is incorrect in the contempt proceeding. It should have been challenged at the Court of Appeals, during the original appeal of the jury verdict, damages and injunction.

One cannot bring up Rule 65(d) during a contempt proceeding. That has absolutely nothing to do with contempt.


----------



## Curtis52

Greg Bimson said:


> jac, I think you have missed something here.
> 
> You are saying that "the injunction can only prohibit acts of infringement of the patent." However, the injunction clearly states that the Infringing Products in customers' hands as of 8 September, 2006 must be disabled. Even if the Infringing Products no longer infringe, one cannot use the defense that the injunction, pursuant to Rule 65(d), only can prevent infringement.
> 
> That would be a collateral attack on the injunction.


If the modified DVRs are more than colorably different from the enjoined devices they aren't legally the same DVRs. Dish is happy with the injunction wording.


> MCELHINNY- AS YOU KNOW FROM PAICE, AS YOU KNOW DIRECTLY FROM THE FEDERAL CIRCUIT, *DISTRICT COURTS CANNOT ENJOIN NONINFRINGING PRODUCTS*. SO THERE WAS NOTHING ERRONEOUS ABOUT YOUR ORDER. *YOUR ORDER WAS EXACTLY RIGHT*. IT WAS WRITTEN EXACTLY AS THE FEDERAL CIRCUIT TELLS YOU TO DO IT TO ENJOIN THE USE OR THE CONTINUED USE OF INFRINGING PRODUCTS. BUT WHAT KSM TEACHES IS YOU CAN MODIFY THOSE PRODUCTS SUCH AS THEY ARE NO LONGER INFRINGING, YOU ARE ENTITLED -- UNLESS IT'S A SHAM, YOU ARE ENTITLED TO A TRIAL ON THE QUESTION OF WHETHER THESE NEW PRODUCTS INFRINGE.


----------



## jacmyoung

Greg Bimson said:


> jac, I think you have missed something here.
> 
> You are saying that "the injunction can only prohibit acts of infringement of the patent." However, the injunction clearly states that the Infringing Products in customers' hands as of 8 September, 2006 must be disabled. Even if the Infringing Products no longer infringe, one cannot use the defense that the injunction, pursuant to Rule 65(d), only can prevent infringement.
> 
> That would be a collateral attack on the injunction.
> 
> ...


That is the whole problem with your argument, you said yourself an infringing product can never become non-infringing, yet now you are saying "even if the Infringing Products no longer infringe"?

The "collateral attack" only occurs when we accept your wrong interpretation of the order that the Infringing Porudcts will always be Infringing Products, and "the DVR functions" means "any DVR functions".

TiVo interpreted the order wrong, than accused DISH of attacking the order based on such incorrect interpretation of the order.

If the Infringing Products no longer infringe on the patent, they are no longer Infringing Products, and "the DVR functions" to be disabled must be the infringing DVR functions, not any DVR functions that may not infringe.

If you take the above DISH's interpretation, then the order complies with Rule 65(d) perfectly and DISH is in full compliance of the order.

Now I know you will not accept DISH's interpretation, the only thing I am saying is when there are different interpretations, the judge must decide who to agree to, and the benefit of any ambiguity will go to the defendant.


----------



## nobody99

jacmyoung said:


> The "collateral attack" only occurs when we accept your wrong interpretation of the order that the Infringing Porudcts will always be Infringing Products, and "the DVR functions" means "any DVR functions".


Wow, so the part of the injunction that says *"i.e., disable all storage to and playback from a hard disk drive of television data"* can be just skipped over? I assume you skipped this part because it doesn't fit your tortured interpretation of what the plain language of the injunction demands.

If you are going to ask people to accept your fantasyland interpretation of the injunction, please don't pick and choose the parts that suit you. When the court adds a parenthetical explanation about its meaning, don't you think that is part of this conversation?

So how can DISH have "any DVR functions" if they can't write television data to the hard disk? Can you answer that simple question for me?


----------



## jacmyoung

nobody99 said:


> Wow, so the part of the injunction that says *"i.e., disable all storage to and playback from a hard disk drive of television data"* can be just skipped over? I assume you skipped this part because it doesn't fit your tortured interpretation of what the plain language of the injunction demands.
> 
> If you are going to ask people to accept your fantasyland interpretation of the injunction, please don't pick and choose the parts that suit you. When the court adds a parenthetical explanation about its meaning, don't you think that is part of this conversation?
> 
> So how can DISH have "any DVR functions" if they can't write television data to the hard disk? Can you answer that simple question for me?


First off your use of words of ridicule never made you a more credible debater. All of your so called analogies in the past had been destroyed before they even had a chance. So when you read on just think about how you argue against mine please.

I have long before used a simple analogy to demonstrate why the "i.e. all..." means "all the..." of that infringing DVR functions, not "all the..." of any DVR functions.

Here I will try it again just for you.

A bunch of kids just had shared a birthday cake, they now are working on their salad. Most of them got done with their salad and started to play in the yard except three boys, who are very slow on the salad, but want to play with the rest of the kids.

One of the boy's mom said to her kid, look junior, you must finish your salad, oh I mean (i.e.) all of the salad, before you may go to play in the yard.

Do you interpret her as saying, the boy must eat all the salad in all three boys' plates, or all of the salad in his own plate?

The "i.e. all storage and playback..." refers to all the storage and playback capabilities of "the DVR functions" under the old design, not "any DVR functions" under any new design.

Now before you decide to rip into or ridicule my above explanation, just keep one thing in mind, no matter how much you believe my above explanation is wrong and how much your own explanation is right, as long as each of our interpretations has merit, there exists the ambiguity.

And too bad you do not get the benefit if such ambiguity, I do. In a resonable dispute when the court may accept either explanation, the court must accept the defendant's explanation.


----------



## jacmyoung

And that is another bottom line. Forever the TiVo folks accepted TiVo's interpretation, refused to even give DISH's interpretation any consideration at all, when it should be the opposite, TiVo must make sure DISH's intepretation has absolutely no logic and no merit, because otherwise the court must adopt DISH's, not TiVo's, because DISH is the defendant, TiVo is the plaintiff.

Did TiVo ever try to rip into DISH's interpretation of the order? No, they never did, all TiVo did was to assume the court would automatically adopt TiVo's own interpretation, they never even contemplated the possibility that the court may go with DISH's argument.

Which was exactly why when the judge asked, what if I found DISH not in violation on the face of my order, what did that leave you?

They had no answer, they never prepared for such scenario. Due to such a lack of preparedness, Mr. Chu responded with the desciption of the second hearing that could undermine their ability to continue to go after the 4 million DVRs, after he said the second hearing would be for "new products."

No the original intent of the second hearing, as judge himself understood, was for an additional discovery on the new software to further address the same 4 million DVRs, if no violation on the face of the order.

They were so unprepared for the judge's question they stumbled on the answer, described their second hearing as to go after the new products, therefore giving DISH a good chance to have a closure on the 4 million DVRs forever, should the judge find DISH not in violation on the face of his order.


----------



## nobody99

jacmyoung said:


> First off your use of words of ridicule never made you a more credible debater.


I hope that I never once conveyed the idea that I somehow needed credibility on an online message forum. If you think I am somehow reaching out, my empty soul craving acceptance...eh, no.

To be brutally honest, I'm simply going through a constant evaluation of my stock position in TiVo. So think of yourself as my research assistant :lol:



> All of your so called analogies in the past had been destroyed before they even had a chance. So when you read on just think about how you argue against mine please.


Somebody set us up the bomb! You have no chance to survive make your time! All your base are belong to us.



> I have long before used a simple analogy to demonstrate why the "i.e. all..." means "all the..." of that infringing DVR functions, not "all the..." of any DVR functions.
> 
> Here I will try it again just for you.


Blah blah blah. Let me try again since you are incapable of answering a simple question (side note: look up Occam's Razor)

Yes or no: Is there any DVR software that can be implemented that does not write television data to disk. Please answer yes or no.



> Now before you decide to rip into or ridicule my above explanation


Don't worry, I won't ridicule you until you answer the simple yes or no question.


----------



## James Long

jacmyoung said:


> One of the boy's mom said to her kid, look junior, you must finish your salad, oh I mean (i.e.) all of the salad, before you may go to play in the yard.
> 
> Do you interpret her as saying, the boy must eat all the salad in all three boys' plates, or all of the salad in his own plate?


We shot down this example whey you wasted server space with it before.


> The "i.e. all storage and playback..." refers to all the storage and playback capabilities of "the DVR functions" under the old design, not "any DVR functions" under any new design.


That is for THE COURT to decide. Not jacmyoung, but someone with some authority and actual legal knowledge.

YOU may wish that it applies only to the old functions, so does DISH, but there is no guarantee. Judge Folsom didn't make it as clear at others have (such as Footprint 2.0's "as configured" or the mother's "your plate").


> And too bad you do not get the benefit if such ambiguity, I do. In a resonable dispute when the court may accept either explanation, the court must accept the defendant's explanation.


There is no MUST to that.


----------



## Ergan's Toupe

nobody99 said:


> Yes or no: Is there any DVR software that can be implemented that does not write television data to disk. Please answer yes or no.
> 
> Don't worry, I won't ridicule you until you answer the simple yes or no question.


Don't hold your breath waiting. Trust me, I've been waiting for weeks.


----------



## nobody99

Ergan's Toupe;1804202 said:


> Don't hold your breath waiting. Trust me, I've been waiting for weeks.


Yeah, he's not a very good research assistant, is he :lol:


----------



## jacmyoung

James Long said:


> ...There is no MUST to that.


Yes there is, I have quoted the courts saying just that several times.

If either side's argument has merit, the court must rule in favor of the defendant.


----------



## Ergan's Toupe

jacmyoung said:


> If either side's argument has merit, the court must rule in favor of the defendant.


Ummmmmm....... WHAT!!!??


----------



## jacmyoung

Again, in a summary contempt setting, TiVo as the mover does not enjoy the same benefit as DISH the non-mover. TiVo must prove with clear and convincing evidence that DISH's design around still infringe, and DISH only needs to establishe the doubt whether the new design around still infringe, they don't even need to prove non-infringement.

And likewise, as far as the interpretations of the order, TiVo must completely refute DISH's interpretation, TiVo did not even try, TiVo simply assumed theirs would be the given, they forgot they are the plaintiff and the mover, they bear all the burden of proof. If DISH's interpretation has merit, it does not even have to be full-proof, the court must rule in favor of DISH. I am not saying that is exactly what the court will do, you know courts have abused their discretion before, that is why there is this thing called the appeals court.


----------



## jacmyoung

Ergan's Toupe;1804411 said:


> Ummmmmm....... WHAT!!!??


If you can't understand, continued asking why is not helpful.


----------



## Ergan's Toupe

jacmyoung said:


> If you can't understand, continued asking why is not helpful.


Is this that "tie goes to the runner," thing again? :lol:


----------



## scooper

Ergan's Toupe;1804572 said:


> Is this that "tie goes to the runner," thing again? :lol:


No - more like "if in doubt - decide on Not guilty.

Like "If the glove doesn't fit - you must acquit"


----------



## Greg Bimson

jacmyoung said:


> Again, in a summary contempt setting, TiVo as the mover does not enjoy the same benefit as DISH the non-mover. TiVo must prove with clear and convincing evidence that DISH's design around still infringe, and DISH only needs to establishe the doubt whether the new design around still infringe, they don't even need to prove non-infringement.


Not on devices already adjudicated as infringements and installed in customers' homes as of 8 September, 2006.


jacmyoung said:


> And likewise, as far as the interpretations of the order, TiVo must completely refute DISH's interpretation, TiVo did not even try, TiVo simply assumed theirs would be the given, they forgot they are the plaintiff and the mover, they bear all the burden of proof.


You mean like this?


> Without the mandate rule, "there would be no end to a suit [because] every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions." Roberts v. Cooper, 61 U.S. 467, 481 (1857). "No litigant deserves an opportunity to go over the same ground twice." Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed. Cir. 1983). This is precisely what EchoStar seeks to do here - to claim error in the injunction's scope when the time for doing so has passed. But EchoStar's argument, that an alleged modification of the original software can automatically remove the Adjudicated Receivers from the scope of the injunction, would undo the judgment of infringement in this case. The judgment was not limited to the original software; rather, the Adjudicated Receivers en toto were judged to infringe.2 The Federal Circuit's mandate encompasses findings of infringement with respect to all of the Adjudicated Receivers (not just software therein), as well as affirmance of this Court's injunction. Defying this Court's order, EchoStar has left the Adjudicated Receivers in place with the DVR functionality fully operational. That is contempt.
> *TiVo's repsonse to EchoStar's opposition to the motion for contempt, filed 18 July, 2008*


There are plenty of other paragraphs I can quote from that document.


> Now let's apply established case law. There is a well established line of cases. It starts with the United States Supreme Court. Obviously the Fifth Circuit and the federal circuit follows this line. An example of the case includes _Walker v. City of Birmingham_. It's a case that goes to the united states supreme court. It's cited in the briefs. And the argument there is whether civil rights marchers, including martin luther king, can violate an injunction on its face or do they have to challenge the terms of the injunction? And of course in a case like that there are important constitutional free speech issues. And the Supreme Court says unless there are absolutely extraordinary circumstances, you have got to challenge the terms of the injunction. You can't use self help to violate it on your own.
> *TiVo counsel Morgan Chu during 8 September, 2008 hearing*


The injunction says to disable the receivers.

So TiVo is refuting both of these positions:

Position 1:


jacmyoung said:


> That is because, as the Circuit Court stated:
> 
> "...the only acts the injunction may prohibit are infringement of the patent by the adjudicated devices and infringement by devices not more than colorably different from the adjudicated devices. In order to comply with Rule 65(d), the injunction should explicitly proscribe only those specific acts."
> 
> The act of using the DVR functions under the new design around, if no longer an infringement of the patent, cannot be prohibited by the injunction because the injunction can only prohibit acts of infringement of the patent.


If an injunction can only prohibit acts of infringement, yet the injunction forces DISH/SATS do disable their new (but installed for the past two years), supposedly non-infringing receivers, the injunction should have been challenged. Heck, even the wonderful injunction in KSM did not comply with Rule 65(d), but it was certainly a valid injunction.

Position 2:


Curtis52 said:


> As you know from _Paice_, as you know directly from the Federal Circuit, District Courts cannot enjoin noninfringing products. So there was nothing erroneous about your order. Your order was exactly right. It was written exactly as the federal circuit tells you to do it to enjoin the use or the continued use of infringing products. But what KSM teaches is you can modify those products such as they are no longer infringing, you are entitled -- unless it's a sham, you are entitled to a trial on the question of whether these *new* products infringe.


Except that there is no question on "new products", just the ones that have been adjudicated as infringements.

Whether or not they currently infringe has no bearing on the fact the order says to disable them.


----------



## Ergan's Toupe

scooper said:


> No - more like "if in doubt - decide on Not guilty.
> 
> Like "If the glove doesn't fit - you must acquit"


Since there is no doubt the injunction says to turn off the DVR's for the life of the patent why are they still working? 

If the glove fits you must not acquit...


----------



## Ergan's Toupe

Greg Bimson said:


> Whether or not they currently infringe has no bearing on the fact the order says to disable them.


I wish I had a buck for every time someone has explained that to ole Curt.... :lol:


----------



## peak_reception

scooper said:


> No - more like "if in doubt - decide on Not guilty.
> 
> Like "If the glove doesn't fit - you must acquit"


 And with the same amount of credibility :nono2:


----------



## jacmyoung

Greg Bimson said:


> Not on devices already adjudicated as infringements and installed in customers' homes as of 8 September, 2006.


That has been TiVo's and your opinion as well, not of the court. According to all case law your such opinion does not fair too well.



> You mean like this?There are plenty of other paragraphs I can quote from that document.The injunction says to disable the receivers.


Quoting TiVo does not prove much, TiVo says things only to fit their way, quote case law, like we do



> So TiVo is refuting both of these positions:
> 
> Position 1:If an injunction can only prohibit acts of infringement, yet the injunction forces DISH/SATS do disable their new (but installed for the past two years), supposedly non-infringing receivers, the injunction should have been challenged.


Quote me where the order forces the disabling of any "new products"? Again don't take TiVo's words as if it is true, use your own logic and seek facts for support not just what TiVo is saying. The order only prohibited the same models of the DVRs from been installed the same "infringing DVR functions", and that only.



> Heck, even the wonderful injunction in KSM did not comply with Rule 65(d), but it was certainly a valid injunction.


No where in KSM was the injunction deemed not in compliance with the rule. Only the contempt ruling was in error. Besides what was your point anyway, in KSM the contempt ruling was overturned was it not?



> Position 2:Except that there is no question on "new products", just the ones that have been adjudicated as infringements.


Again don't bring in the new products in this debate, and don't act as if your opinion that once a product is ruled to infringe, it forever infringes, it is only your opinion.



> Whether or not they currently infringe has no bearing on the fact the order says to disable them.


Again your opinion only, don't speak as if it is true.

I know some will say but yours are opinions too, how come you speak as if they are true? Well for one thing my opinions are based on case law, not just what DISH had said.

Secondly as I said, what is important is not if my opinion is correct or not, but if my argument has any merit or not, if the answer is yes, I should win because I am the non-mover, the defendant in this case, even if TiVo's argument also has some merit, it does not matter, as long as my arugment also has merit, I win.

Again TiVo and its supporters seem to not understand one thing, in this summary contempt proceeding, you folks must prove with clear and convicing evidence, must completely refute our interpretation of the order, in order to win.

In stead you act as if DISH must do the above, and you only need to find even the little bits of "irrelevance" in all the case law that we have cited.

No, it is the other way around, you guys must do the citing of all relevant case law, and you folks must convince the court with clear and convincing evidence.

So when you realize that for the most part you are only on the defense, frantically trying to dig up a few words in this prior case, and a few other words in another prior case, and trying to argue those prior cases are "irrelevant", even saying KSM is irrelevant, then if that is all you can do, chances are you are going to lose, I am sorry to say that.


----------



## Curtis52

Greg Bimson said:


> Whether or not they currently infringe has no bearing on the fact the order says to disable them.


That's almost identical to what the district court said in KSM vs. Jones. Jones was enjoined against using or selling fasteners of the type and nature identified by the Plaintiff. There was no mention of infringement in the injunction. The injunction wasn't even forced on Jones. It was a consent decree. They actually agreed to stop using and selling fasteners of that type or anything similar with no mention of infringement in the injunction and seemingly no way out of such an ironclad injunction. The district court didn't think it was germane to check whether the modified parts infringed. They thought it was enough that the modified parts met the enjoined criteria and ruled there was contempt. The appeals court disagreed. Even though infringement wasn't mentioned in the injunction, prevention of infringement is the basis of all patent infringement injunctions regardless of how the injunction is worded. They told the district court that they had to check for infringement.


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


----------



## Greg Bimson

jacmyoung said:


> Quote me where the order forces the disabling of any "new products"? Again don't take TiVo's words as if it is true, use your own logic and seek facts for support not just what TiVo is saying. The order only prohibited the same models of the DVRs from been installed the same "infringing DVR functions", and that only.


How many spins do you need to make your logic? This entire paragraph is so full of spin that the Earth will never sit still.

First, the injunction does not order any "new products" to be disabled. Just because there is a modification on an adjudicated, infringing product does not make Joe Blow's four-year old 501 a "new product".

Second, the order on those installed, Infringing Products is to disable storage to and playback from a hard disk drive of television data. Not your spun "infringing DVR functions".


jacmyoung said:


> Again don't bring in the new products in this debate, and don't act as if your opinion that once a product is ruled to infringe, it forever infringes, it is only your opinion.


I'd argue with case law, and have been...

Like Fisher-Price and the order against Safety 1st to recall product. They did not recall the product to the best of their ability; they were found in contempt.

Again, just because there was a modification does not make this case any different than any other case where either disabling or recalling were ordered.

Follow the injunction: disable the models ordered to be disabled.


jacmyoung said:


> No where in KSM was the injunction deemed not in compliance with the rule. Only the contempt ruling was in error.


Oops. From paragraphs 27 and 28 of the Court of Appeals decision:


> 6. The Defendant ... [is] enjoined and restrained from making, using or selling insulation hangers or refractory anchors of the type and nature identified by the Plaintiff in its Complaint against the Defendant for the remainder of the life of U.S. Patent No. 3,738,217 issued June 12, 1973.
> 
> *Despite the reference to the complaint, contrary to Rule 65(d), Jones has not challenged this error*, nor does Jones challenge that the injunction is enforceable against devices other than the specific THERMAL-LOCK device of the original suit. Jones' challenge is to the standards applied by the district court in holding the company in contempt.


The injunction in KSM had an error, but it was too late to be corrected.


Curtis52 said:


> That's almost identical to what the district court said in KSM vs. Jones. Jones was enjoined against using or selling fasteners of the type and nature identified by the Plaintiff. There was no mention of infringement in the injunction. The injunction wasn't even forced on Jones. It was a consent decree. They actually agreed to stop using and selling fasteners of that type or anything similar with no mention of infringement in the injunction and seemingly no way out of such an ironclad injunction. The district court didn't think it was germane to check whether the modified parts infringed. They thought it was enough that the modified parts met the enjoined criteria and ruled there was contempt. The appeals court disagreed. Even though infringement wasn't mentioned in the injunction, prevention of infringement is the basis of all patent infringement injunctions regardless of how the injunction is worded. They told the district court that they had to check for infringement.


As KSM was a consent decree, none of the products were "found" infringing. In this case, the accused products have already been found infringing. So KSM obviously does not apply.


jacmyoung said:


> Secondly as I said, what is important is not if my opinion is correct or not, but if my argument has any merit or not, if the answer is yes, I should win because I am the non-mover, the defendant in this case, even if TiVo's argument also has some merit, it does not matter, as long as my arugment also has merit, I win.
> 
> Again TiVo and its supporters seem to not understand one thing, in this summary contempt proceeding, you folks must prove with clear and convicing evidence, must completely refute our interpretation of the order, in order to win.


I think you have been missing our point. And yes, this will be obvious:

If DISH/SATS interpretation of the injunction is incorrect, and KSM cannot be applied to this case, then DISH/SATS loses.


----------



## Greg Bimson

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


A judgment of contempt can only be found against violation of an injunction against patent infringement by the making, using or selling of a modified device if it is an infringement.

Funny how that is the standard injunction order; where does it mention disabling products found as infringements?


----------



## James Long

jacmyoung said:


> Quoting TiVo does not prove much, TiVo says things only to fit their way, quote case law, like we do


Quoting Tivo proves that you were wrong, perhaps even lying, when you made the claim that "TiVo did not even try" to refute DISH's interpretation.


> order only prohibited the same models of the DVRs from been installed the same "infringing DVR functions", and that only.


No where did the injunction specify that it was "the same" DVR functionality being enjoined.

You can't have it both ways. You can't claim that the injunction is specific when it helps your fantasy and not specific when it doesn't. The injunction is what it is. DVR functionality is clearly defined. The eight models of Infringing Products still have DVR functionality as defined by the injunction. They write and read television data from a hard drive.


> Again your opinion only, don't speak as if it is true.


Demonstrate how that is done. It seems that all you are capable of doing is fantasizing and speaking it as if it were true.


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## nobody99

How Curtis and Jac continue to think KSM applies to this case is suprising to me. Let's look at a quote from Rectifier vs IXYS again.



> As in Additive Controls, the trial court's injunction in this case does not meet the specificity requirements of Rule 65(d). The injunctive language set forth in the trial court's judgment prohibits infringement by "any device covered by one or more of Claims 1 through 5" of the '481 patent. *On its face the injunction applies to many more devices than those actually adjudicated.* Indeed, by its terms the injunction applies to "any device" made or sold by IXYS that is within the scope of the patent claims. The actual scope of the injunction cannot be that expansive, however, because this court has held that *"contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe*, and to other devices which are no more than colorably different therefrom and which clearly are infringements of the patent." KSM, 776 F.2d at 1526.


I know this is really difficult for Curtis, but when taken *in context*, KSM atually works _against_ DISH.

"contempt proceedings... are available only with respect to devices previously admitted or adjudged to infringe"

Killer words for DISH.

Here's where the two of you get lost in the logic. You believe that KSM allows adjudicated devices to get out of the scope of the injunction. It does not. It allows non-adjudicated devices to be added to the scope of the injunction without a new trial. That is an extremely important distinction that seems to be lost on the two of you


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## nobody99

Case



> Lastly, EEI argues that the district court should have considered evidence and conducted further evidentiary hearings to determine whether PE wax was the equivalent of "fatty acid wax" and was therefore infringing. "Contempt proceedings are appropriate as long as the new issue does not raise a substantial question of infringement." Additive Controls & Measurement Sys. v. Flowdata, Inc., 154 F.3d 1345, 1350 (Fed.Cir.1998). *If an accused infringer merely makes colorable changes to the accused product that infringed, a court may properly extend the injunction to the new device and find the party in contempt.* See id. at 1350-51. Here, the court heard testimony that PE wax was the same as C30 + wax and that they functioned similarly in this context. Thus, the court's decision to extend the injunction to encompass PE wax was not an abuse of discretion.


here's another one that references Additive controls and explains that it allows for an injunction to have products added, not removed.

jacmyoung - please provide a single case where a device was _removed_ from the scope of the injunction. Just one, that's all I ask.


----------



## jacmyoung

nobody99 said:


> Case
> 
> here's another one that references Additive controls and explains that it allows for an injunction to have products added, not removed.
> 
> jacmyoung - please provide a single case where a device was _removed_ from the scope of the injunction. Just one, that's all I ask.


The Footprint2.0, and the egg processing method I quoted.

The Footprint2.0 serivce was a combination of hardware and software that was found to infringe, and after a software update, it was no longer considered infringing. The only argument you folks had was the injunction in that case "allowed" such change to happen, but as said over and over, there is no requirement it has to be first "allowed", it did happen, that is your proof.

BTW, even though I understand you all want so believe the judge may disregard KSM, as TiVo insisted, but unfortunately this will be the biggest mistake TiVo has ever done.

KSM is the standard of all contempt issues on patent infringement. Trying to convince the judge he should disregard KSM, he will not and he cannot, all cases involving design around had used KSM for guide, all of them, Judge Folsom is not going to be the first to go against that trend, because if he does, he knows the appeals court will disagree with him.

The appeals court already said, KSM is the case for all such cases be guided. This case is no different, don't think for a minute this case is extraordinary, it is only wishful thinking.


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## jacmyoung

Greg Bimson said:


> A judgment of contempt can only be found against violation of an injunction against patent infringement by the making, using or selling of a modified device if it is an infringement.
> 
> Funny how that is the standard injunction order; where does it mention disabling products found as infringements?


That is again a big mistake you folks are making, by insisting because this order has a "secondary order" that may appear to allow it to go beyond the limits the uniform standards established.

Another wishful thinking, because no matter how the injunction is framed, whether it has a second, or third or even a fourth order, it has to be brought within the limitation established by the standards, a lower court cannot violate the standards by simply framing an injunction differently.

All the judge has to do is to adopt DISH's interpretation of his order, then his order will be in full compliance of the standards.

But let's say you are right (another on alternative), that the judge will fully adopt TiVo's interpretation, then he must do two things:

1) He must demonstrate that DISH had intentionally, delibrately, and with malicious goal to misinterpret his order. Except TiVo did not accuse DISH of such offense, the court will not help TiVo to make such accusation then convict DISH of such offense. Without a findinng of "flagrant disregard" of the order, there will not be a contempt.

2) He must also admit his order is defective.

And with the 2 above assumptions true, the best the court should do is to say to DISH, look you are wrong, your interpretation of my order was wrong. you thouhgt my order was correct, and you thought you made a good faith attempt to come into complaince of the correct order.

But my order was defective, and TiVo was right, you misinterpreted it as correct.

Now tell me what *reasonable* steps shoud the court take next?


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## nobody99

jacmyoung said:


> The Footprint2.0


Doesn't count. The injunction explicitly allowed for it to be removed.



jacmyoung said:


> and the egg processing method I quoted.


Uhm, ok. Reference please? Or do I just take your word for it?



jacmyoung said:


> but unfortunately this will be the biggest mistake TiVo has ever done.


Wow, will they have to go to their rooms without dinner? :lol:



jacmyoung said:


> KSM is the standard of all contempt issues on patent infringement. Trying to convince the judge he should disregard KSM, he will not and he cannot, all cases involving design around had used KSM for guide, all of them, Judge Folsom is not going to be the first to go against that trend, because if he does, he knows the appeals court will disagree with him.


You are absolutely correct that KSM is the standard for workarounds in patent infringement cases. But you completely misunderstand what the actual standard allows. KSM means nothing to an already-adjudicated device.


----------



## Greg Bimson

jacmyoung said:


> That is again a big mistake you folks are making, by insisting because this order has a "secondary order" that may appear to allow it to go beyond the limits the uniform standards established.


The order is in full force and effect. It is too late to challenge the injunction. That is your big mistake.

An error on a "uniform standard" in an injunction cannot be challenged at a contempt hearing.


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## Curtis52

Greg Bimson said:


> The order is in full force and effect. It is too late to challenge the injunction. That is your big mistake.
> 
> An error on a "uniform standard" in an injunction cannot be challenged at a contempt hearing.


Dish isn't challenging the injunction. They agree with it.

Jones in the KSM case didn't challenge the injunction either but contempt was thrown out.


> Despite the reference to the complaint, contrary to Rule 65(d), *Jones has not challenged this error*, nor does Jones challenge that the injunction is enforceable against devices other than the specific THERMAL-LOCK device of the original suit. Jones' challenge is to the standards applied by the district court in holding the company in contempt. KSM


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## nobody99

Curtis52 said:


> Dish isn't challenging the injunction. They agree with it.
> 
> Jones in the KSM case didn't challenge the injunction either but contempt was thrown out.


"contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe" KSM


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## Ergan's Toupe

nobody99 said:


> "contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe" KSM


That's a dollar for me! :lol:


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## jacmyoung

nobody99 said:


> "contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe" KSM


Don't take words apart, because contempt proceedings are also available with devices not admitted or adjudicated but only colorably different than those already admitted or adjudicated.

But the above is not the same as saying once the contempt proceedings are available, there has to be a finding of contempt. Many infringers were found not in contempt during the contempt proceedings.


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## nobody99

jacmyoung said:


> Don't take words apart, because contempt proceedings are also available with devices not admitted or adjudicated but only colorably different than those already admitted or adjudicated.


Uh, I quoted directly from a decision from the appeals court. So please, tell them not to "take words apart."

Let me remind you again that KSM is used to limit what can be *added* to the scope of the injunction, not what can be removed.


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## Curtis52

jacmyoung said:


> Don't take words apart, because contempt proceedings are also available with devices not admitted or adjudicated but only colorably different than those already admitted or adjudicated.


Indeed.


> The unreasonableness of a decree incorporating a vague or broad prohibition against "infringement" of a "patent" is alleviated because of the universal rule, to be addressed infra, that contempt proceedings, civil or criminal, are available only with respect to devices previously admitted or adjudged to infringe, *and to other devices which are no more than colorably different therefrom* and which clearly are infringements of the patent. KSM


If there is more than a colorable difference, the devices are considered new and require a new infringement lawsuit or supplemental action instead of a contempt hearing..


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## jacmyoung

Greg Bimson said:


> The order is in full force and effect. It is too late to challenge the injunction. That is your big mistake.
> 
> An error on a "uniform standard" in an injunction cannot be challenged at a contempt hearing.


Again, as Curtis52 said, the case TiVo cited was not applicable, in that case the infringer disagreed with the order, but they chose to take the order into their own hands, and went against the order and used the parts for reqairs, and similarly the Dr. King's case was the same situation, the defendants in both cases disagreed with the orders.

In this case DISH did not disagree with the order, they believed based on their interpretation of the order, the order is 100% correct, so the above two cases simply do not apply here.

Now I asked what would folks think the *reasonable* steps for the court to take, if we assume Judge Folsom adopts TiVo's interpretation of the order?

The judge will say to DISH look your interpretation of my order, as TiVo said, was wrong, that my order is not as 100% correct as you thought.

Now what we do? How about a "middle ground"?

Remember the judge did on 9/4 at one point mention the "middle ground"?

Now let's first agree that once the court determines that the order has a defect, it has to correct it, yes?

So how about this, the court will re-frame the injunction so that this time there is no way that anyone may misinterpret it, and in addition, this time we will make sure the order complies with Rule 65(d) 100%, fair enough?

And at the same time TiVo will be allowed a court-sanctioned discovery on the new design around, and in the next hearing, the new design around will be re-examined, and not only that, in that next hearing, the DVRs on the table will not be limited to the 4 million DVRs on the list, but all E* DVRs, including the 622s, 722s, and any other DVRs not part of the 8 models.

And let's assume all E* DVRs now use the new software, so if in the next hearing, it can be determined that the new design around is only colorable, all E* DVRs will have to be disabled of their DVR functions.

But if the new design around is found more than colorable, then E* will be allowed to continue as before, not have to disable the DVR functions.

And of course TiVo can continue to go after the new software infringement, only that they must do so in a new complaint, independent of this lawsuit.

How is that "middle ground" to you? If you do not agree, why not give me your "middle ground"? As long as you do understand it has to be a "middle ground", as the judge said himself on 9/4.


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## Ergan's Toupe

jacmyoung said:


> How is that "middle ground" to you? If you do not agree, why not give me your "middle ground"? As long as you do understand it has to be a "middle ground", as the judge said himself on 9/4.


The judge never said it *HAD* to be middle ground. You just made that up.


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## Greg Bimson

jacmyoung said:


> In this case DISH did not disagree with the order, they believed based on their interpretation of the order, the order is 100% correct, so the above two cases simply do not apply here.


Not if the interpretation both flies in the face of simple reason and attacks the injunction...


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## Curtis52

Greg Bimson said:


> flies in the face of simple reason and attacks the injunction...


I need to find my fly swatter.


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## nobody99

Curtis52 said:


> Indeed.
> If there is more than a colorable difference, the devices are considered new and require a new infringement lawsuit or supplemental action instead of a contempt hearing..


(*cough*) bullcrap (*cough*)



KSM said:


> contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe, *and to other devices which are no more than colorably different* therefrom and which clearly are infringements of the patent.


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## jacmyoung

Ergan's Toupe;1805681 said:


> The judge never said it *HAD* to be middle ground. You just made that up.


Where did you read me saying it had to be?


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## jacmyoung

Greg Bimson said:


> Not if the interpretation both flies in the face of simple reason and attacks the injunction...


You need to tell us where did DISH attack the injucntion first.

Are you saying no one can have their reasonable interpretation of the order, that becuase you firmly believe your interpretation is correct, therefore any other interpretation amounts to an attack?

You got to be kidding me!


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## nobody99

jacmyoung said:


> Where did you read me saying it had to be?


ET, allow me 



> As long as you do understand it *has* to be a "middle ground", as the judge said himself on 9/4.


----------



## nobody99

jacmyoung said:


> Are you saying no one can have their reasonable interpretation of the order


If you think that your interpretation of the injunction is reasonable, then there's no point in discussing it.


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## jacmyoung

nobody99 said:


> ET, allow me


You know you two are so alike in terms of not able to read in the context of the argument...

Anyway, because I suggested to Greg a "middle ground" scenario, so I asked him if he wanted to join in such speculation, he may, but just to remember, this speculation is about a "middle ground" so don't come back with a one-sided ground, ok? Understand now?

Now this is to Greg, I just want to add, if you believe simply by disagreeing with your interpretation of the order can be considered an attack on the order, then I hope you can agree that I can also accuse you of attacking the order, don't you think so? Because you disagreed with my interpretation.

How do you feel now?


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## jacmyoung

nobody99 said:


> If you think that your interpretation of the injunction is reasonable, then there's no point in discussing it.


Then don't, because I have said all along my interpretation is reasonable, it is too bad you just figured it out now.


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## nobody99

jacmyoung said:


> Then don't, because I have said all along my interpretation is reasonable, it is too bad you just figured it out now.


I am having a really hard time understanding what you are trying to say (what else is new :grin. I just hope that you don't think that I "just figured it out now" that your "interpretation is reasonable."

Quite the opposite. Your interpretation relies on some leaps of logic that defy the imagination.


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## peak_reception

Darn it all, I just missed being the 1,000th post on this thread!


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## jacmyoung

nobody99 said:


> I am having a really hard time understanding what you are trying to say (what else is new :grin. I just hope that you don't think that I "just figured it out now" that your "interpretation is reasonable."
> 
> Quite the opposite. Your interpretation relies on some leaps of logic that defy the imagination.


Then why are you still discussing it? You just said if I believed my interpretation was reasonable, you would not discuss it anymore. Be true to your words.


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## Ergan's Toupe

jacmyoung said:


> Then don't, because I have said all along my interpretation is reasonable, it is too bad you just figured it out now.


You think it's "reasonable" and I (and others) don't think so. What's your point? You only acknowledge things you can twist to fit your little fantasy of how this case is playing out.

You are entitled to your opinion. It has been proven wrong countless times, but by god, you're entitled to it.

Again, all you have is your opinion, don't expect everyone to live in the same dream world and believe it. :nono2:


----------



## Ergan's Toupe

jacmyoung said:


> You know you two are so alike in terms of not able to read in the context of the argument...


Who's fault is that? Not everybody has your sense of imagination, Jacy. :lol:


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## nobody99

jacmyoung said:


> Then why are you still discussing it? You just said if I believed my interpretation was reasonable, you would not discuss it anymore. Be true to your words.





nobody99 said:


> If you think that your interpretation of the injunction is reasonable, then there's no point in discussing it.


I'll admit I wasn't clear enough. Just to clear it up, I wanted _you_ to stop :lol:


----------



## Greg Bimson

jacmyoung said:


> Now this is to Greg, I just want to add, if you believe simply by disagreeing with your interpretation of the order can be considered an attack on the order, then I hope you can agree that I can also accuse you of attacking the order, don't you think so? Because you disagreed with my interpretation.





jacmyoung said:


> Another wishful thinking, because no matter how the injunction is framed, whether it has a second, or third or even a fourth order, it has to be brought within the limitation established by the standards, a lower court cannot violate the standards by simply framing an injunction differently.


You are saying that if the injunction does not meet the standard, something is wrong with the injunction.

That is an attack on the injunction. It's too late for that. The time to argue that the injunction is not standard has passed.


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## Ergan's Toupe

Greg Bimson said:


> You are saying that if the injunction does not meet the standard, something is wrong with the injunction.
> 
> That is an attack on the injunction. It's too late for that. The time to argue that the injunction is not standard has passed.


Why is so hard for certain people to understand this? It has been explained hundreds of times.

What part of this is giving you guys trouble?


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## nobody99

Greg Bimson said:


> You are saying that if the injunction does not meet the standard, something is wrong with the injunction.
> 
> That is an attack on the injunction. It's too late for that. The time to argue that the injunction is not standard has passed.


I think it's also important to point out that _even if_ the injunction is wrong and could be overturned (it can't), DISH still has to abide by it. DISH knows exactly what the injunction means based on the original request to stay the injunction.


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## Ergan's Toupe

nobody99 said:


> I think it's also important to point out that _even if_ the injunction is wrong and could be overturned (it can't), DISH still has to abide by it. DISH knows exactly what the injunction means based on the original request to stay the injunction.


But that was for the *"OLD"* DVR's. Just trying to help Curtis out. :lol:


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## jacmyoung

Greg Bimson said:


> You are saying that if the injunction does not meet the standard, something is wrong with the injunction.


Yes that was what I said, and I don't think you disagree. But what I have also said was there is nothing wrong with this injunction, based on my interpretation, this injunction is perfectly fine, nothing wrong, it complies with Rule 65(d) 100%.



> That is an attack on the injunction. It's too late for that. The time to argue that the injunction is not standard has passed.


Again please make sure first what have said.

Now after you somewhat appeared to have said the injunction now appeared to be not in compliance of the Rule 65(d), I might have used the "on alternative argument" to accept your notion and tried to still prove you wrong. But keep in mind, the use of "on alternative" is not to agree with you, only to accept your false claim for a minnute and to still prove you wrong.

It is a strategy that can confuse people, so yes such debate strategy is rarely used in front of a jury, but widely used among the lawyers and the judges. I thought you were good enough not to be confused.


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## Greg Bimson

jacmyoung said:


> Now after you somewhat appeared to have said the injunction now appeared to be not in compliance of the Rule 65(d), I might have used the "on alternative argument" to accept your notion and tried to still prove you wrong. But keep in mind, the use of "on alternative" is not to agree with you, only to accept your false claim for a minnute and to still prove you wrong.


I'm still waiting for that proof. 

The reality is that DISH/SATS has hung their hats on two points:

1) an interpretation of the injunction (and misguided at that) is that it cannot prohibit a non-infringing device

2) KSM makes it clear that modified devices must be tested for infringement before being found in contempt.

The problem is that:
1) the injunction orders products adjudged infringing to be disabled; a modification other than disabling those products will most likely be met with contempt

2) KSM is about a devices never adjudged. This motion for contempt is only about the devices adjudged as infringements.


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## jacmyoung

Continued arguing on the same things is not helpful, you can have the last words as long as you do not misinterpret this as I am agreeing with you


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## Ergan's Toupe

jacmyoung said:


> It is a strategy that can confuse people,


That just might be the understatement of the year! It even confused you! !rolling


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## Ergan's Toupe

jacmyoung said:


> Continued arguing on the same things is not helpful, you can have the last words as long as you do not misinterpret this as I am agreeing with you


Translation: I have nothing....


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## James Long

jacmyoung said:


> Continued arguing on the same things is not helpful, you can have the last words as long as you do not misinterpret this as I am agreeing with you


The same sentiment applies to replying to your verbosity. Lack of a rebuttal of your [strike]drivel[/strike] "talking points" does not mean that one agrees with you nor that you are right ... it just means that talking with you is not worth the time wasted on a reply.

The argument is circular. I'm seeing the same posts made months ago ... let's see something new - or quietly sit and wait for something new to appear.


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## jacmyoung

James Long said:


> The same sentiment applies to replying to your verbosity. Lack of a rebuttal of your [strike]drivel[/strike] "talking points" does not mean that one agrees with you nor that you are right ... it just means that talking with you is not worth the time wasted on a reply.
> 
> The argument is circular. I'm seeing the same posts made months ago ... let's see something new - or quietly sit and wait for something new to appear.


You have conveniently ignored the fact I have been pretty much the only one that have at least from time to time added new items to these discussions, the latest one being a speculated "middle ground" concept, another one just a day before was a case law in which I cited as proof there was not much point of informing the plaintiff or the court of a modificaiton. So please if you want to find someone who has not added anything rather repeating himself, I think there are other candidates


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## Ergan's Toupe

jacmyoung said:


> if you want to find someone who has not added anything rather repeating himself, I think there are other candidates


Way to throw Curtis under the bus, Jacy. :lol:


----------



## jacmyoung

And let me add another one that may be new.

I know we all agree it is not likely the Supreme Court would want to hear E*’s petition, but no one can say the possibility does not exist at all. Especially when the TiVo folks who are the very people that insist this case is very unique, and no prior case law may apply, not even KSM.

Remember KSM is the standard established by the appeals court to govern all contempt proceedings in patent cases where modification is an issue. So the fact TiVo is arguing that the standards shall not apply, by definition land to the argument that the Supreme Court should consider this case, to establish a new standard, or at least to clarify all the existing standards. That is one of the justifications why the SC should consider a petition.

Now under such scenario, which I agree is not likely but more probable under TiVo’s argument anyway, I would say if the Supreme Court decides to take this case, it will be detrimental to TiVo, and I hope you folks do not need me to explain why.


----------



## Greg Bimson

jacmyoung said:


> Remember KSM is the standard established by the appeals court to govern all contempt proceedings in patent cases where modification is an issue.


Uh, no...


jacmyoung said:


> So the fact TiVo is arguing that the standards shall not apply, by definition land to the argument that the Supreme Court should consider this case, to establish a new standard, or at least to clarify all the existing standards. That is one of the justifications why the SC should consider a petition.


Uh, again, no.

TiVo is arguing there is a standard which should be applied. Order says to disable, infringer does not comply with injunction, therefore contempt.

Happens all the time. _Walker v. City of Birmingham_ is just one such case.

Since when is it precedential if the argument and case law of one party (in this case, the infringer) does not apply?


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## jacmyoung

I should add, TiVo has been saying the injunction they got from this case is a far more reaching injunction than anything ever done before, Rogers was saying this just about a month ago.

If true (which I do not think so) then again there is a good argument that the Supreme Court should consider the petition. Because not long ago the petitioner in the Ebay case used the same argument and got the Supreme Court to consider their case, and not only that the High Court overturned the injunction order, which was issued by the district court and then upheld by the appeals court.

The Ebay decision by the Supreme Court was a very important one, and here again, an injunction had been issued and the appeals court did not disagree with it, and TiVo has been going around telling the public that this injunction is more profound than anything ever done before. In TiVo’s view, all E*’s DVRs must be rendered pretty much useless.

Under such argument, I again say TiVo has made E*’s justification for a consideration by the SC more likely. A decision that is historical, more far-reaching than any other injunctions before it, certainly lands justification for it to be heard by the SC.

Not that it is likely the SC will hearing it, only that the likelihood, no matter how small, is increased by TiVo’s going-around.


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## scooper

You people who want this case to be heard by SCOTUS - be careful what you wish for - you may get it and not like the results.


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## nobody99

Ergan's Toupe;1806223 said:


> Way to throw Curtis under the bus, Jacy. :lol:


:lol: :lol: (massive laughter) :lol: :lol:


----------



## Greg Bimson

jacmyoung said:


> I should add, TiVo has been saying the injunction they got from this case is a far more reaching injunction than anything ever done before, Rogers was saying this just about a month ago.
> 
> If true (which I do not think so) then again there is a good argument that the Supreme Court should consider the petition.


This may escape me...

I think DISH/SATS can only postulate while appealing to SCOTUS that the rulings from the Court of Appeals were wrong. I don't think DISH/SATS can argue the injunction is invalid in front of SCOTUS without arguing its validity prior to asking SCOTUS for review.

Does anyone know if DISH/SATS is finally challenging the injunction in the writ of certiorari?


----------



## James Long

jacmyoung said:


> You have conveniently ignored the fact I have been pretty much the only one that have at least from time to time added new items to these discussions, the latest one being a speculated "middle ground" concept, another one just a day before was a case law in which I cited as proof there was not much point of informing the plaintiff or the court of a modificaiton. So please if you want to find someone who has not added anything rather repeating himself, I think there are other candidates


Yet when asked to provide something new you have turned to insult, self promotion and defensiveness. Perhaps others are repetitive because they keep putting you back in your place? How many times do I have to say "back to topic" before it sinks in? It isn't about you.

:backtotop Tivo vs Echostar ... preferably something new about T vs E


----------



## James Long

jacmyoung said:


> So the fact TiVo is arguing that the standards shall not apply, by definition land to the argument that the Supreme Court should consider this case, to establish a new standard, or at least to clarify all the existing standards.


Perhaps you have forgotten that Echostar is appealing to the Supreme Court. The argument being presented is Echostar's, not Tivo's. No matter how compelling you may believe Tivo's argument to be ... it is Echostar's argument that matters.

You are also apparently forgetting what is being appealed to the Supreme Court at this time ... the original verdict. The case being discussed in conference soon is NOT about KSM or DISH's allegedly non-infringing replacement software or any of the issues raised since April. The case before the Supreme Court is about what the appeals court has already ruled on.

Echostar will have to be found in contempt and have that contempt upheld by the appeals court for them to even approach the Supreme Court on the other issues.


----------



## James Long

Greg Bimson said:


> I don't think DISH/SATS can argue the injunction is invalid in front of SCOTUS without arguing its validity prior to asking SCOTUS for review.


I agree. SCOTUS has more power than other courts and CAN address other issues but in general I agree that unless there is new evidence (such as a murderer being cleared by DNA) an appeal needs to focus on errors made in the decision being appealed.


> Does anyone know if DISH/SATS is finally challenging the injunction in the writ of certiorari?


Per above, I don't believe they can.

I wish SCOTUS was as open as the district courts ... it would be interesting to read that writ.


----------



## jacmyoung

scooper said:


> You people who want this case to be heard by SCOTUS - be careful what you wish for - you may get it and not like the results.


I don't think DISH can get any worse which ever the way the SC votes, or even rules.

You have argued the patent system is no longer suitable for software products, aside from that, the DVR trick plays did not start with TiVo, DISH owns a few DVR trick play patents that was ahead of the time of the TiVo's patent. Personally I think the jury's software verdict was correct, but who knows what else is there that maybe in dispute. Not many thought the jury's hardware verdict were wrong either.

I certainly do not pretend I know how the SC works, speculation without full knowledge is not prohibited I don't think so, otherwise many here would have been done the same things many times too.

As for the injunction, I don't know if DISH said anything, but given the profound far reaching impact as TiVo continues to claim at this time, whether DISH has a good justificaiton to have the courts re-consider if the injunction itself is the appropriate venue or not is certainly a valid question.

The interesting thing is, the timing of it all. If Judge Folsom does not produce his ruling before the SC vote, I wonder what may be the appearance of the outcome of his ruling.

Whichever the SC's vote, Judge Folsom's ruling after such vote may be perceived by either party and their supporters to be influenced by such vote.


----------



## Ergan's Toupe

*Appeals Court affirms injunction for Broadcom against QCOM*

Broadcom-BRCM confirms jury verdict in patent case 
Broadcom announced that the U.S. Court of Appeals for the Federal Circuit today upheld a unanimous jury verdict that Qualcomm (QCOM) cellular chips and software infringe two Broadcom patents, and upheld the injunction entered by the district court on those two patents. The appeals court also rejected Qualcomm's request for a new trial. The court ruled that a third patent was invalid. :theflyonthewall.com


----------



## jacmyoung

Ergan's Toupe;1807246 said:


> *Appeals Court affirms injunction for Broadcom against QCOM*
> 
> Broadcom-BRCM confirms jury verdict in patent case
> Broadcom announced that the U.S. Court of Appeals for the Federal Circuit today upheld a unanimous jury verdict that Qualcomm (QCOM) cellular chips and software infringe two Broadcom patents, and upheld the injunction entered by the district court on those two patents. The appeals court also rejected Qualcomm's request for a new trial. The court ruled that a third patent was invalid. :theflyonthewall.com


I wonder if the above injunction tried to disable millions of products already in use?

There is a good reason why TiVo is going around bragging this injunction is historically far reaching, because it can affect millions of consumers if the design around does not work out. In that sense I agree with TiVo, I for one have not, after my research, ever encountered one past injunction that had gone this far. Infringing products already in the field were usually allowed to continue.

Judge Folsom appeared to have also touched on that point on 9/4, when he alluded to the possibility of going the route of his Pacer v. Toyota, in which he denied an injunction but ordered a fixed fee to be paid on an on-going basis as long as the infringement continued by Toyota, another possible "middle ground".

Though in this case I don't think the middle ground is necessarily to remove the injunction, rather to remove the "disabling" order, in exchange for a fixed per box payment or some kind of monthly fee to go into the future as long as the DVRs continue to infringe, in a sense reducing the impact to the consumers yet still serves the interest of TiVo.

Of course if the judge agrees with DISH that the design around is a good work around of the TiVo patent, the above will not be an issue.


----------



## nobody99

> There is a good reason why TiVo is going around bragging this injunction is historically far reaching


What on God's green earth are you talking about? Please explain how they are going around "bragging" about the injunction being "historically far reaching."



> Judge Folsom appeared to have also touched on that point on 9/4, when he alluded to the possibility of going the route of his Pacer v. Toyota, in which he denied an injunction but ordered a fixed fee to be paid on an on-going basis as long as the infringement continued by Toyota, another possible "middle ground".


So, in your research, have you ever found a case where a judge could just ignore the law, ignore his own orders, and make up a whole new outcome? Because that's what you are suggesting. Talk about "historically far reaching"!


----------



## Ergan's Toupe

nobody99 said:


> What on God's green earth are you talking about? Please explain how they are going around "bragging" about the injunction being "historically far reaching."
> "!


This should be good.... :lol:


----------



## jacmyoung

Ergan's Toupe;1807399 said:


> This should be good.... :lol:


Again another case of both of you don't know what you are talking about before jumping on others. Please go read or watch some of the interviews of Rogers.


----------



## jacmyoung

nobody99 said:


> ...So, in your research, have you ever found a case where a judge could just ignore the law, ignore his own orders, and make up a whole new outcome? Because that's what you are suggesting. Talk about "historically far reaching"!


Again you simply don't understand the debate here, so please don't accuse others of things they did not say.


----------



## CuriousMark

jacmyoung said:


> Again another case of both of you don't know what you are talking about before jumping on others. Please go read or watch some of the interviews of Rogers.


Links?


----------



## Ergan's Toupe

jacmyoung said:


> Again another case of both of you don't know what you are talking about before jumping on others. Please go read or watch some of the interviews of Rogers.


This is my biggest problem with your posts, Jacy. You state stuff as fact and when called out you either change the subject, ignore the post, make stuff up, or just insult the questioner.

It is not our job to research your posts, it is yours. You made the claim, now back it up. If you say Rogers is "bragging" about the injunction, post proof. Not your opinion, PROOF.

Post a link to a video of Rogers "bragging" about the injunction and if Rogers is indeed "bragging" I will gladly apologize. Until then I think this is just another thing you made up.


----------



## Ergan's Toupe

jacmyoung said:


> Again you simply don't understand the debate here, so please don't accuse others of things they did not say.


It's funny how everyone but you doesn't understand, huh? 

Think about it.....


----------



## jacmyoung

CuriousMark said:


> Links?


http://kara.allthingsd.com/20080923...s-tom-rogers-2-of-4/?reflink=ATD_yahoo_ticker


----------



## jacmyoung

Ergan's Toupe;1807461 said:


> It's funny how everyone but you doesn't understand, huh?
> 
> Think about it.....


No I meant only you two. I guess even that you did not understand.

You did not see others posting something like: Uh? What? Humm? Did you?


----------



## James Long

I believe many others are simply ignoring you ... why debate a brick wall?


----------



## nobody99

jacmyoung said:


> http://kara.allthingsd.com/20080923...s-tom-rogers-2-of-4/?reflink=ATD_yahoo_ticker


Is this _really_ your link "why TiVo is going around bragging this injunction is historically far reaching"

Wow. Weak.


----------



## scooper

James Long said:


> I believe many others are simply ignoring you ... why debate a brick wall?


I've got 4 people on ignore and it sure cleaned up the thread, and one of them WASN'T jacmyoung.


----------



## CuriousMark

jacmyoung said:


> http://kara.allthingsd.com/20080923...s-tom-rogers-2-of-4/?reflink=ATD_yahoo_ticker


You mean the part where he says the "this is pretty far reaching injunctive relief" and then compares it with the RIM / Blackberry case? That is what you are calling bragging? 

"pretty far reaching" is certainly not "historically far reaching" but at least two of the words were right.


----------



## jacmyoung

scooper said:


> I've got 4 people on ignore and it sure cleaned up the thread, and one of them WASN'T jacmyoung.


You, Greg, Curtis52, and of course James, as long as you people do not ignore me


----------



## Ergan's Toupe

scooper said:


> I've got 4 people on ignore and it sure cleaned up the thread, and one of them WASN'T jacmyoung.


Who wants to bet I'm on that list? :crying:


----------



## Ergan's Toupe

CuriousMark said:


> You mean the part where he says the "this is pretty far reaching injunctive relief" and then compares it with the RIM / Blackberry case? That is what you are calling bragging?
> 
> "pretty far reaching" is certainly not "historically far reaching" but at least two of the words were right.


I knew he was making it up again. :icon_stup


----------



## jacmyoung

CuriousMark said:


> You mean the part where he says the "this is pretty far reaching injunctive relief" and then compares it with the RIM / Blackberry case? That is what you are calling bragging?
> 
> "pretty far reaching" is certainly not "historically far reaching" but at least two of the words were right.


And then when he compared it to the Blackberry case what did he say? He said it was "far more reaching" than the Blackberry case in which they had a couple of millions of Blackberry users but DISH has more DVR users.

The implication was Rogers was thinking this injunction meant to put *all* DISH DVRs out of commission, that is the only way you can interpret what he meant by it, that this one was far more reaching than the Blackberry's case of "a couple of million users".

But even if he had not been saying that, the fact of the matter is yes this injunction is indeed far more reaching than anything I have seen before. While I don't pretend to have seen enough at all, but I have researched many of those patent cases, I can tell you historically there had never been an order that had such potential impact on the consumers in such large scale.

I will be very happy if someone can cite me a case that was equal or more of a reach in terms of its impact on the public.

That of course is a legit question, especially given the SC's Ebay decision. Now I agree since DISH did not contest the injunction in its current form, there may not be an issue at the SC level at this time.

But you can bet if the court rules in the way Rogers sees it should in terms of contempt of the injunction, there will be good reason for the SC to consider it.

Whether it will happen, or even if it happens, whether Charlie will want to go that far, of course are all anyone's guess. Personally if there is a contempt this time, it will not survive at the appeals court level. But never say never.


----------



## jacmyoung

The latest DirecTV investors' call talked a lot about D*'s plan for the next year, and did not mention a single word of TiVo on D*, just to show how much D* cares about its old/new deals with TiVo.

I hope E* and TiVo works out a deal, a real one, not the one with D* or with Comcast, E* and TiVo both need each other to saving them from falling off the cliff


----------



## James Long

All quiet on the Eastern and Western fronts. No court activity to report.


----------



## nobody99

jacmyoung said:


> The latest DirecTV investors' call talked a lot about D*'s plan for the next year, and did not mention a single word of TiVo on D*, just to show how much D* cares about its old/new deals with TiVo.


And this has anything to do with the court case....how? :nono2:


----------



## nobody99

Also today..



> DirecTV Group Inc. agreed to sell television programming through AT&T Inc. as part of discounted packages of services that also include Internet access and phone calling.
> 
> John Malone's DirecTV, the nation's biggest satellite-TV provider, takes over from Dish Network Corp. as AT&T's television partner. The deal takes effect in February, after AT&T's deal with Dish expires, the companies said today in a statement.


In after-market trading, DISH was down $1.44 per share (5.87%).

Not a single word from AT&T just to show how much AT&T cares about its old/new deals with DISH. :lol:


----------



## James Long

nobody99 said:


> Also today..
> 
> 
> 
> 
> DirecTV Group Inc. agreed to sell television programming through AT&T Inc. as part of discounted packages of services that also include Internet access and phone calling.
> 
> John Malone's DirecTV, the nation's biggest satellite-TV provider, takes over from Dish Network Corp. as AT&T's television partner. The deal takes effect in February, after AT&T's deal with Dish expires, the companies said today in a statement.
> 
> 
> 
> In after-market trading, DISH was down $1.44 per share (5.87%).
> 
> Not a single word from AT&T just to show how much AT&T cares about its old/new deals with DISH. :lol:
Click to expand...

"And this has anything to do with the court case....how? :nono2:"

:backtotop


----------



## nobody99

James Long said:


> "And this has anything to do with the court case....how? :nono2:"
> 
> :backtotop


tit for tat. I'll shut up now


----------



## Ergan's Toupe

nobody99 said:


> Also today..
> 
> In after-market trading, DISH was down $1.44 per share (5.87%).
> 
> Not a single word from AT&T just to show how much AT&T cares about its old/new deals with DISH. :lol:


Maybe Charlie should spend some time running his business and stop with all the litigation.

Litigation hasn't exactly worked out well for him. He's not much of a poker player if you ask me.


----------



## Ergan's Toupe

nobody99 said:


> tit for tat. I'll shut up now


:lol:


----------



## jacmyoung

Both news are relavent to this discussion in that as I said, both E* and TiVo are in need of each other, no one else cared about them

ATT did mention E*'s customers will be cared for and service honored with full commitment, D* did not mention a word of TiVo.

The ATT deal with E* is only a minor part of E* overall sub base, the D*/TiVo deal is nearly 50% of TiVo's sub base.

Regardless, E*'s situation is not good, TiVo can't get anyone to work with them in a serious way. Yet a meaningful cooperative relation between E* and TiVo can quickly change the course for both companies and make both of them stand above the crowd, and turn things around for both.

It is unfortunate that it may take Judge Folsom, not the bean counters at the two companies, to make it happen.


----------



## Ergan's Toupe

jacmyoung said:


> It is unfortunate that it may take Judge Folsom, not the bean counters at the two companies, to make it happen.


What's "unfortunate" is that Charlie is fiddling while his company is burning. :nono:


----------



## jclewter79

If TIVO does manage to get the E* DVR's shut down, it will not be the end of E*. It would hurt, and many customers would be lost but, it would not shut them down.


----------



## tnsprin

jclewter79 said:


> If TIVO does manage to get the E* DVR's shut down, it will not be the end of E*. It would hurt, and many customers would be lost but, it would not shut them down.


If TIVO managed to get E* DVR's shut down, and then no deal was quickly made to enable them again, then most people andl analysts are convinced that that would be the end of E*.

Certainly I would be gone, probably trying FIOS TV (I am already using FIOS phone/internet).


----------



## jclewter79

They would ship out VIP's, I just don't think it would drive them out of business.


----------



## tnsprin

jclewter79 said:


> They would ship out VIP's, I just don't think it would drive them out of business.


They do not have the supplies and the $$ to replace all these DVR's with VIP DVR's quickly. Most of the E* DVR's out there are targeted for shutdown in the TIVO suit.

If TIVO wins the first round they will target the VIP's next. The statement was if they got E* DVR's shutdown, not just the ones mentioned in the original suit.


----------



## jclewter79

Time warp patent will run out before they can get anything done with the VIP's.


----------



## Ergan's Toupe

jclewter79 said:


> Time warp patent will run out before they can get anything done with the VIP's.


Are you willing to take that chance? Are you a poker player too?


----------



## Ergan's Toupe

jclewter79 said:


> They would ship out VIP's, I just don't think it would drive them out of business.


Here's a novel idea.....

Why doesn't Charlie just pay for what he stole and be done with it? You're already paying for it, Chuckles just has to pass the money on to Tivo and it's all done.


----------



## jacmyoung

Ergan's Toupe;1812436 said:


> Here's a novel idea.....
> 
> Why doesn't Charlie just pay for what he stole and be done with it? You're already paying for it, Chuckles just has to pass the money on to Tivo and it's all done.


Do you really think paying TiVo will end it? TiVo will like to see all E* DVRs stopped, as Rogers said, after the "$220 million" additional damages of course, the DVRs will still be disabled.

I must give the TiVo supporters the credit of putting so much fear in the E* DVR users that a lot of them believe their DVRs will be shut off soon. I have been saying no, no need to listen to those TiVo fanboys, but the credit should go to the right people.

But heck even I have just dropped my 722 with E* after they refused to lease me more than two, and insisted I pay $500 for the 3rd one. Only one 625 left with E* now.

My full HD service is now 100% D* with 4 HDDVRs and only one DVR fee. What is going to bring down E* is not this TiVo deal, paying TiVo will not restore E*'s bad quarterly numbers, what is going to bring down E* is D* and Fios' competitive edge right now.

E* needs to match the same hardware offer to compete. TiVo will be out of the picture after the no contempt ruling, but D* and Fios will still be in its face for a long time to come.


----------



## Ergan's Toupe

jacmyoung said:


> Do you really think paying TiVo will end it? TiVo will like to see all E* DVRs stopped, as Rogers said, after the "$220 million" additional damages of course, the DVRs will still be disabled


If Tivo were getting their royalties from Charley, why in the world would they want the boxes shut down?

Go back to your fantasy land and leave reality to the rest of us, ok? :icon_stup


----------



## Herdfan

jacmyoung said:


> Do you really think paying TiVo will end it? TiVo will like to see all E* DVRs stopped, as Rogers said, after the "$220 million" additional damages of course, the DVRs will still be disabled..


Well, yeah.

An ongoing royalty payment in addition to past infringement damages would certainly stop it.

The big issue now is how much is the royalty going to be. They probably could have gotten by with under $1 (per customer, not unit) before all this started similar to what DirecTV pays. But now TiVo is throwing around $2.25.

Charlie could have ended this a long time ago, raised the DVR fee $1 and nobody would have left and he would not have risked having DVR's shut off. But his EGO got in the way.


----------



## Ergan's Toupe

Herdfan said:


> Charlie could have ended this a long time ago, raised the DVR fee $1 and nobody would have left and he would not have risked having DVR's shut off. But his EGO got in the way.


When does Chuckles take AT&T to court?

You just know the "stubborn" one has his stable of lawyers looking for a loophole to exploit as we speak.

Letting AT&T climb in bed with the competition is just another example of how out of touch Charlie is.

Do you think he talks about how he would rather spend millions in litigation than admit he made a mistake and will wind up paying double (or just have the DVR's shut down) during his next "Charlie Chat'?


----------



## jclewter79

Ergan's Toupe;1812432 said:


> Are you willing to take that chance? Are you a poker player too?


I would say that would be a safe bet, look how long this thing has drug on.


----------



## Ergan's Toupe

jclewter79 said:


> I would say that would be a safe bet, look how long this thing has drug on.


You do realize that the patents are valid until 2015 right? Do you really think Tivo is going to wait 7 years to sue again?

Do you think that a lawsuit will just end and go away when the patents end?

Did you go to the same Law School Charlie did? :lol:

Chuckles is playing with fire. Do you know what happens to people that play with fire? :flaiming


----------



## jclewter79

Ergan's Toupe;1812694 said:


> You do realize that the patents are valid until 2015 right? Do you really think Tivo is going to wait 7 years to sue again?
> 
> Do you think that a lawsuit will just end and go away when the patents end?
> 
> Did you go to the same Law School Charlie did? :lol:
> 
> Chuckles is playing with fire. Do you know what happens to people that play with fire? :flaiming


LOL, Look I agree, Charlie should pay for past infringment right now, but I don't think that TIVO should see a red cent from anytime after the workaround until it is decided for sure it too infringes. As for the VIP's E* has a good case that they are more than colorably different and always have been. E* needs to cut a check for the past infringment period and shut their lips about it, Tivo needs to cash that check and shut their lips about the VIP's. Then, Tivo needs to go focus on making that new D* DVR they have coming out next year the best damn dvr the world has ever seen, good enough that most of D* customers will gladly pay tivo larger dvr fees instead of opting for a HR series dvr. If tivo can't do that they will be dead by 2015, I don't care how many youtube videos you can play on the thing.


----------



## scooper

jclewter79 said:


> I would say that would be a safe bet, look how long this thing has drug on.


I agree - judging on past "performance" of the "success" Tivo has had in getting the E* DVRs shutdown to date...


----------



## Greg Bimson

scooper said:


> I agree - judging on past "performance" of the "success" Tivo has had in getting the E* DVRs shutdown to date...


Yes, but the problem here is that if contempt is granted, what could have been a licensing agreement for about $1 a month per box a year ago will look like a bargain.

Heck, $2.25 a month per box if contempt is granted will look like a bargain.


jclewter said:


> E* needs to cut a check for the past infringment period and shut their lips about it, Tivo needs to cash that check and shut their lips about the VIP's.


Why? It appears that DISH/SATS is using the same infringing technology on the ViP receivers that is currently embedded into the "modified" models which were found infringing.

Let's get real here. The reason TiVo sued is to receive ongoing, monthly licensing royalties. Accepting a DISH/SATS check for only past infringement does not accomplish that goal.

The threat of a shutdown of three million receivers should have already accomplished that goal, but...


Herdfan said:


> his EGO got in the way.





DISH/SATS CEO Charles Ergen said:


> I've sat and have the best and the brightest explain this - and *I'm just stubborn.* We don't violate their intellectual property today and I want to prove that. And so, we're going to go to the September 4th hearing and see who's right.


Except the 4 September hearing wasn't about finding that DISH/SATS "don't violate their intellectual property today and [he wants] to prove that."

So there is a strong likelyhood that three million receivers will be orderd disabled because a certain CEO is stubborn. And TiVo does not believe that the newer DISH/SATS receivers are infringement-free.


----------



## Ergan's Toupe

Greg Bimson said:


> The threat of a shutdown of three million receivers should have already accomplished that goal, but...Except the 4 September hearing wasn't about finding that DISH/SATS "don't violate their intellectual property today and [he wants] to prove that."
> 
> So there is a strong likelyhood that three million receivers will be orderd disabled because a certain CEO is stubborn. And TiVo does not believe that the newer DISH/SATS receivers are infringement-free.


And all of Charlie's supporters will scream and yell about how it's all Tivo's fault that they don't have a working DVR.


----------



## James Long

Ergan's Toupe;1812432 said:


> jclewter79 said:
> 
> 
> 
> Time warp patent will run out before they can get anything done with the VIP's.
> 
> 
> 
> Are you willing to take that chance? Are you a poker player too?
Click to expand...

No ... he's a realist. See how long it took to get from accusation to verdict through appeals to an actual "shut down" in the 501 / 508 / 510 / 522 / 625 / 721 / 921 / 942 case. Unless Tivo can convince Judge Folsom that ViPs are only colorably different, a verdict on their software is years away ... minimum.

(And yes, there is no actual shut down. The receivers are going obsolete in the normal course of improvement before DISH disables them!  )


Ergan's Toupe;1812436 said:


> Why doesn't Charlie just pay for what he stole and be done with it?


Stole? That's BS. The only thing DISH has been found guilty of is infringing on a patent. Not theft.


----------



## James Long

Ergan's Toupe;1812594 said:


> When does Chuckles take AT&T to court?


On what charge?


----------



## James Long

Greg Bimson said:


> DISH/SATS CEO Charles Ergen said:
> 
> 
> 
> I've sat and have the best and the brightest explain this - and *I'm just stubborn.* We don't violate their intellectual property today and I want to prove that. And so, we're going to go to the September 4th hearing and see who's right.
> 
> 
> 
> Except the 4 September hearing wasn't about finding that DISH/SATS "don't violate their intellectual property today and [he wants] to prove that."
Click to expand...

True. But in order to GET to the point where Mr Ergen can prove his present non-infringement he has to get past the September 4th hearing.


----------



## Ergan's Toupe

James Long said:


> Stole? That's BS. The only thing DISH has been found guilty of is infringing on a patent. Not theft.


Fine, have it your way. Why doesn't Chuckles just pay for what he "infringed" on and be done with it? :grin:


----------



## Ergan's Toupe

James Long said:


> On what charge?


It's just the way Charlie does business. You know, when things don't go your way, head to court! :lol:

I'm sure one of his lawyers can make something up. They seem to be pretty good at that. Using Jedi Mind Tricks, they can drag it out for years before they even have to state what the grounds are.


----------



## Mainer_ayah

jclewter79 said:


> If TIVO does manage to get the E* DVR's shut down, it will not be the end of E*. It would hurt, and many customers would be lost but, it would not shut them down.


No, probably not, But the rest of the financial issues the company is facing coupled with a mass exodus of DVR clients will certainly bring it to the brink, and perhaps beyond. And to think, Charlie could have made this whole thing go away for around a buck a box per month a few years back.


----------



## Mainer_ayah

jacmyoung said:


> TiVo will be out of the picture after the no contempt ruling,.


Tivo has already proven that they have defensible IP. The only thing your hoped for no contempt ruling would show is that if you are a dishonest dick head, and pay your lawyers enough to mess with the system, you might be able to get away with the theft. At what cost? All Charlie will have done is show he has a big manhood package, but squat when it comes to business sense. Most corporations will be working with Tivo, in good faith, with the knowledge that they can establish agreements that will be beneficial to both them and TiVo.


----------



## Ergan's Toupe

Mainer_ayah said:


> No, probably not, But the rest of the financial issues the company is facing coupled with a mass exodus of DVR clients will certainly bring it to the brink, and perhaps beyond. And to think, Charlie could have made this whole thing go away for around a buck a box per month a few years back.


Charlie thought he could "starve" Tivo out by delaying, gaming the system, appeals etc. When that didn't work and everyone realized the Emperor was naked his overinflated ego won't let him admit defeat and bow out gracefully.

He is a HORRIBLE businessman who's answer to everything is litigation. If I was a shareholder I would be calling for his head. His act is getting old. Who even wants to do business with this guy? AT&T just kicked him to the curb, who's next?

How much more is his "stubbornness" going to cost his shareholders when he is finally forced to settle with Tivo or face a mass defection of customers to his competition where Tivo will collect a royalty on Charlie's ex-customers when they get a tivo from D*?

Not to mention the class action lawsuit he gets slapped with when the DVR's go black.


----------



## scooper

Did you know that Charles Ergen, his wife, and Jim deFranco own about 95% or more of the voting stock of Echostar, etc. ?


----------



## Ergan's Toupe

scooper said:


> Did you know that Charles Ergen, his wife, and Jim deFranco own about 95% or more of the voting stock of Echostar, etc. ?


No, I didn't know that. But that explains everything. He can do whatever he wants (and does). I would never invest any money in a company like that.

How's the stock been doing? I don't follow it but I can't imagine all this nonsense is good for it.


----------



## James Long

Ergan's Toupe;1813122 said:


> How's the stock been doing? I don't follow it but I can't imagine all this nonsense is good for it.


There are bigger problems than Tivo vs Echostar ... everyone seems to want to blame everything on their pet excuse or claim that a some specific action or inaction would lead to failure. There are good days and bad days ... DISH has been lower than they are today, Tivo has been higher. I wouldn't read too much into stock prices.

We don't get into stock talk here anyways ... we're more interested in the companies than what investors believe they are worth at a particular moment in time. That is all that a stock price is anyways.


----------



## Ergan's Toupe

James Long said:


> I wouldn't read too much into stock prices.
> .


I just want to make sure Charlie has enough money to pay Tivo.


----------



## James Long

He's got enough to buy Tivo, if he wanted to (and if Tivo was for sale).

(Tivo Market Value $ 752,088,960. Charles Ergen net worth estimated at $10.2 billion.)


----------



## scooper

As I said - if I was Charlie - That's what I would have done - make this "go away" by buying out Tivo - poison pill or not....


----------



## Greg Bimson

James Long said:


> There are bigger problems than Tivo vs Echostar ... everyone seems to want to blame everything on their pet excuse or claim that a some specific action or inaction would lead to failure. There are good days and bad days ... DISH has been lower than they are today, Tivo has been higher. I wouldn't read too much into stock prices.


I can remember when DISH offered to exchange 1.76 shares of DISH stock to DirecTV owner Hughes for each share of the tracking stock. Although at that time, DirecTV was gaining a small amount of net new customers while the proposed merger was ongoing, many felt that DISH was _undervalued_. When the merger was scuttled in October, 2002, DISH share price widened to an almost two to one ratio against the Hughes tracking stock.

Even as early as last summer, DISH stock was trading at about $50 a share while DirecTV was at $30. The speculation was that AT&T was looking at purchasing DISH.

Fast forward to today, where DISH has spun-off SATS (two shares of SATS were given for every ten of DISH owned by shareholders), the AT&T deal appears to have completely unraveled with DirecTV taking over from DISH/SATS as AT&T's video partner, and two quarters of net subscriber losses. Now the spread between DISH/SATS and DTV is almost non-existant.

And that didn't even mention the TiVo v. Echostar suit.

Can anyone imagine what would happen if "stubborn" ended up disabling about three million DVR's? We are talking about massive customer loss; the kind where irate customers will soapbox to their friends they should never give this company a dime.


----------



## James Long

Greg Bimson said:


> Can anyone imagine what would happen if "stubborn" ended up disabling about three million DVR's? We are talking about massive customer loss; the kind where irate customers will soapbox to their friends they should never give this company a dime.


That isn't going to happen. DISH will not be disabling their DVRs.


----------



## Greg Bimson

James Long said:


> That isn't going to happen. DISH will not be disabling their DVRs.


I do agree. But why run headstrong to the precipe?

If DISH/SATS is found in contempt, they are standing on the edge of it, and there aren't many options. Either they pay the arm and the leg that TiVo will demand for taking the fight this far, or they jump and take out three million DVR's. There is no "middle ground".


----------



## peak_reception

Greg Bimson said:


> I do agree. But why run headstrong to the precipe?


 Make that "headlong." 


> If DISH/SATS is found in contempt, they are standing on the edge of it, and there aren't many options. Either they pay the arm and the leg that TiVo will demand for taking the fight this far, or they jump and take out three million DVR's. There is no "middle ground".


 They'll do what they want, as always. :sure: Who's gonna stop them?


----------



## jacmyoung

Greg, there is no difference if Charlie settles now or later.

Charlie is convinced that he has a good design around, and according to all the case law he is not in contempt. Yes he lost the infringement fight, but he did win a few fights after that, he won the treble and attorney fees fight, he also got the stay of the injunction to have time to do the design around. Give in right now for what? All the past effort will be a total waste. Give in right now saves him no money at all because TiVo will not let him keep any of the money in the escrow and will pursue the maximum damages during the stay regardless.

Only when a no contempt ruling is out, would he be able to have some leverage. No contempt is probably the best bet you can get in this long legal battle, and the most important thing is even if he loses on this one, he will not be any worse than today. Not to mention he can still appeal, and the appeals court will be more adamant about the standards, even if (a big if) Judge Folsom may be more adamant about his order.

How would you play this card if you are in his position, honestly? Negotiate? Fold? For what?

The only thing I can see him talking to TiVo right now is if the pressure of his stock value is so great that he is forced to try to produce some good news for E*. But since he controls the vast voting rights, the pressure is only his own making, so the question really is under what kind of pressure had he ever folded?

The distant case gives us a good example, when there was no way he could keep his networks signals, he still played the card and managed to "lease" his transponders to keep the signals alive, and got a no contempt after FOX brought up the issue to the court.

He has no history of folding so easily. That is not to say history cannot be made.


----------



## dfd

jacmyoung said:


> Charlie is convinced that he has a good design around, and according to all the case law he is not in contempt.


According to ALL the case law or according to you?


----------



## Greg Bimson

jacmyoung said:


> Greg, there is no difference if Charlie settles now or later.


Trust me, there is a big difference when it comes to bargaining in good faith or bargaining while cornered.


jacmyoung said:


> Give in right now saves him no money at all because TiVo will not let him keep any of the money in the escrow and will pursue the maximum damages during the stay regardless.


I assume you know what a settlement is? In TiVo's case, it would be a lump-sum for past infringement and an ongoing monthly license, in exchange for dropping all litigation, including the "maximum damages".

The money in escrow will be gone if the Supreme Court does not review the writ of certoriari. That was supposed to be today or tomorrow.

Mr. Ergen can fight for every little penny, when he'll most likely have to shell out a billion dollars when this is said and done.

BTW, the news that AT&T has dumped DISH has sent the stock down fourteen percent today. Can DISH/SATS take much more bad news?


----------



## Greg Bimson

Greg Bimson said:


> I do agree. But why run headstrong to the precipe?





peak_reception said:


> Make that "headlong."


We're talking the CEO of DISH/SATS. We'll keep that as "headstrong".

Although I don't know what to do about the precipe. Maybe if it were a precipice, it would work.


----------



## nobody99

Greg Bimson said:


> BTW, the news that AT&T has dumped DISH has sent the stock down fourteen percent today. Can DISH/SATS take much more bad news?


That's $1.3 billion in market cap lost. Ouch.


----------



## jacmyoung

Greg Bimson said:


> Trust me, there is a big difference when it comes to bargaining in good faith or bargaining while cornered.


But according to you he is already cornered, in fact you have always believed right after the infringement judgment he had been cornered, so why the difference now? Is he more cornered now than before? As far as I know, nothing new has happened since the appeals court upheld the judgement and the injunction. He has been waiting for the contempt hearing and the ruling all this time.



> I assume you know what a settlement is? In TiVo's case, it would be a lump-sum for past infringement and an ongoing monthly license, in exchange for dropping all litigation, including the "maximum damages".


Please don't assume what I know or use the so called "maximum damages" to scare anyone. The so called $220 million "maximum damages" holds no water at all, you know it.



> The money in escrow will be gone if the Supreme Court does not review the writ of certoriari. That was supposed to be today or tomorrow.


You mean TiVo will let Charlie keep some of that money if he settles now? If so I have a bridge to sell you.



> Mr. Ergen can fight for every little penny, when he'll most likely have to shell out a billion dollars when this is said and done.


You have been throwing large numbers around forever, I remember $600M at one time, now a billion, I also remember you said modification for the 319th time. Are you a serious negotiator



> BTW, the news that AT&T has dumped DISH has sent the stock down fourteen percent today. Can DISH/SATS take much more bad news?


As I said the only possible way for Charlie to consider a settlenemt right now is if he wants to bring some good news while the bad news are all around.

But then again, if he gives in to everything TiVo asks now, what's the difference if he waits another month? At this time TiVo will be asking for the maximum, because they will perceive Charlie as desparate if he seeks settlement right now.

Only after a no contempt ruling, will he be able to get some compromise from TiVo. Now is the worse time to settle. Wait for the ruling will not make it worse, if there is a contempt, and the appeals court upholds the ruling, a settlement then will be in no worse condition than right now.

Except there will be no contempt, and after that the settlement will be in much better shape for E*.


----------



## peak_reception

Greg Bimson said:


> We're talking the CEO of DISH/SATS. We'll keep that as "headstrong".
> 
> Although I don't know what to do about the precipe. Maybe if it were a precipice, it would work.


 Ok, I see what you mean by "headstrong" now.  I left "precipe" alone. Could be plural for precipice. .


----------



## Ergan's Toupe

Greg Bimson said:


> BTW, the news that AT&T has dumped DISH has sent the stock down fourteen percent today. Can DISH/SATS take much more bad news?


Actually down 17.50%, but who's counting. :grin:


----------



## Ergan's Toupe

jacmyoung said:


> Only after a no contempt ruling, will he be able to get some compromise from TiVo. Now is the worse time to settle. Wait for the ruling will not make it worse, if there is a contempt, and the appeals court upholds the ruling, a settlement then will be in no worse condition than right now.


So you think it's better for Chuckles to wait until 4 million boxes go dark and his customers run for the doors to start negotiations? !rolling

Charlie will have Tivo right where he wants them, right?

I want some of whatever you're smoking! :icon_stup


----------



## Greg Bimson

It is an awful big call if DISH/SATS only has the second best hand at the table.


----------



## Ergan's Toupe

Greg Bimson said:


> It is an awful big call if DISH/SATS only has the second best hand at the table.


Nice analogy, Greg.

I think the "stubborn" one is betting over his head. He has overplayed his hand and is now down to praying for an inside straight.

His "take no prisoners" business style has now officially blown up in his face with the departure of AT&T. It couldn't have happened to a nicer guy too....:nono2:


----------



## James Long

Greg Bimson said:


> BTW, the news that AT&T has dumped DISH has sent the stock down fourteen percent today. Can DISH/SATS take much more bad news?


Are you sure? The Nasdaq 100 dropped 10% today ... there is a lot more going on in the world than Echostar's little problems. DirecTV lost 10.92% today and they GOT the deal with AT&T!


----------



## Greg Bimson

When I made the post, DISH was down 14 percent while DTV remained flat.

It was only during the last hour of trading that DTV managed to hit a double-digit loss.

Something is amiss. I think we are seeing many pull their dollars out and head for T-bills. This does not look good at all.


----------



## jacmyoung

Greg Bimson said:


> When I made the post, DISH was down 14 percent while DTV remained flat.
> 
> It was only during the last hour of trading that DTV managed to hit a double-digit loss.
> 
> Something is amiss. I think we are seeing many pull their dollars out and head for T-bills. This does not look good at all.


What does not look good? E* stock or D* stock? or maybe the market as a whole?

Again please do not try to show your so call "4 million DVRs go dark" card, there is no such card on the table right now

You simply cannot give me one good reason why Charlie has to fold now, not 6 months from now.

Besides what I fail to understand is why are you so concerned for Charlie and so eagerly asking him to settle? According to you if he does not settle, he will lose a billion to TiVo. I thought you are on TiVo's side, please don't tell me you do not want to see TiVo collecting that one billion dollar check?

Which side are you on really?

Please do not tell me again you are concerned for us E* subs, thanks but no thanks.


----------



## Greg Bimson

jacmyoung said:


> You simply cannot give me one good reason why Charlie has to fold now, not 6 months from now.


It should have been done months ago.

And this one is easy. Now costs less than six months from now if contempt is granted. And surprisingly enough, where we differ, is that contempt is much more likely to be granted.

Realize if contempt is granted and DISH/SATS does not receive a stay, they are in the corner they so desperately want to avoid.

The damages motion from the 4 September hearing only covers damages accrued until 18 April, 2008. If contempt is granted, the damages only get _worse_. Much worse.


jacmyoung said:


> Please do not tell me again you are concerned for us E* subs, thanks but no thanks.


More concerned for the health of the industry as a whole. It would be nice if DirecTV actually has a competitor.  And to that end, it would be good for almost everyone to put this behind them. Ask RIMM (Blackberry) what happened when they settled.


----------



## James Long

Greg Bimson said:


> The damages motion from the 4 September hearing only covers damages accrued until 18 April, 2008. If contempt is granted, the damages only get _worse_. Much worse.


No. The damages getting worse is not the only outcome if DISH is found in contempt by Judge Folsom. Another potential outcome is an appeals court correcting Judge Folsom. Contempt is a temporary victory. Even if the consequences are not stayed while appealing.

Mr Ergen and DISH Network have taken the gamble to get this far. They could have done your bidding and folded a long time ago ... but why fold now? In their minds they are even more right than they were two years ago. And no dire prediction will change that stance.


----------



## peak_reception

Greg Bimson said:


> Realize if contempt is granted and DISH/SATS does not receive a stay, they are in the corner they so desperately want to avoid.


 I don't think a stay is a sure thing either. The CAFC will remember how DISH came to them the last time around crying wolf about millions of DVRs to be shut down and untold financial ruin, etc. when in reality they (DISH) had this Herculean "design-around" effort already well underway, confident in its success, expert opinions lined up vouching that it no longer infringes, and absolutely no intention of shutting down DVR functionality. Hey, why should all that be any judge's or court's business?!


----------



## Greg Bimson

James Long said:


> Mr Ergen and DISH Network have taken the gamble to get this far. They could have done your bidding and folded a long time ago ... but why fold now? In their minds they are even more right than they were two years ago. And no dire prediction will change that stance.


So, in other words...

It is like the chip leader refusing to fold while having the second best hand. So much money has been invested in the pot that even currently being bested right now will not allow you to throw away the hand and move on.

Any point is not as bad as completely losing the pot.

Folding right now isn't really an option, but if during the next month Judge Folsom grants the motion, there isn't much left that DISH/SATS can do.


----------



## Greg Bimson

At 10:31AM ET, DISH stock was down two percent, while DTV recovered eight percent.

The last-hour selloff yesterday was a bit of an anomaly. Of course, that is evidenced by the 200+ point gain in the DJIA within moments of the opening bell.


----------



## James Long

Greg Bimson said:


> It is like the chip leader refusing to fold while having the second best hand.


Your assumption is that DISH has the second best hand. DISH's assumption is that they still have the best hand in the game. For example, DISH believes they have a straight flush. There is a chance that Tivo is holding a royal flush or a higher straight flush, but DISH believes their hand is strong enough.

One thing DISH as the chip leader can do is keep raising until the opponent folds or goes all in. Then the gamble becomes Tivo's. Do they want to call DISH's bet? Do they want to go all in and risk their entire future? Tivo may believe that they have the best hand but that just makes them just as stubborn as DISH. The difference being who can absorb the loss.


> Folding right now isn't really an option, but if during the next month Judge Folsom grants the motion, there isn't much left that DISH/SATS can do.


They can appeal. Judge Folsom does not have the final word on the subject.


----------



## nobody99

James Long said:


> They can appeal. Judge Folsom does not have the final word on the subject.


No, but an appeal of a contempt finding is a heck of a lot more difficult to overturn than infringement of a patent. There aren't a lot of valid legal reasons to actually appeal.


----------



## Greg Bimson

Whichever side loses will appeal stating Judge Folsom used the wrong standard in applying his finding in this contempt motion.

Misapplication of standards is by far the most used reason when appealing contempt issues.


----------



## Ergan's Toupe

James Long said:


> Your assumption is that DISH has the second best hand. DISH's assumption is that they still have the best hand in the game. For example, DISH believes they have a straight flush. There is a chance that Tivo is holding a royal flush or a higher straight flush, but DISH believes their hand is strong enough.


Doesn't explain why Charlie pushed this all the way to the Supreme Court. I can't wait till the Supremes kick his butt to the curb Monday.

That will be one step closer to doomsday for Chuckles and company.


----------



## jacmyoung

nobody99 said:


> No, but an appeal of a contempt finding is a heck of a lot more difficult to overturn than infringement of a patent. There aren't a lot of valid legal reasons to actually appeal.


Absolutely the opposite, it is much more difficult to find contempt than to find infringement. You simply refuse to read the law and continue to use your own belief as if it is a fact.

BTW, Greg the stake is not any higher. Back two years ago E* had to put down a very large sum of money into the escrow, right now they are arguing the additional damages during the stay.

It was clear that the judge will not give TiVo the $220 million, if no contempt. While the E*'s $16 million is a minimum, if no contempt, the amount will be close even if you use TiVo's rates.

Now the question is really, what is the likelihood of a contempt? No matter what you think, as long as Charlie believes the law is on his side as far as the contempt goes, that is the card he is holding. All the case law are on his side. So yes from the standpoint of the position he is in in this game, he is currently in the best position compared to all previous ones, relatively speakng of course.

Why should he fold now? The stake is not any higher than two years ago when he had to shell out $80 million. He did not fold then, no reason to fold now.


----------



## Ergan's Toupe

Greg Bimson said:


> Whichever side loses will appeal stating Judge Folsom used the wrong standard in applying his finding in this contempt motion.
> 
> Misapplication of standards is by far the most used reason when appealing contempt issues.


While I have no doubt that Chuckles is going to appeal a contempt charge, I think it's more important that he doesn't get the stay.

Without the stay Tivo can use the same stalling, delaying, BS Charlie pulled. In the meantime 4 million boxes go dark and there is a stampede of ex-Dish DVR users to D* (signing 2 year contracts).

As far as I'm concerned he can have his appeal.

IMHO, no stay = game over for Chuckles.


----------



## jacmyoung

Ergan's Toupe;1815142 said:


> Doesn't explain why Charlie pushed this all the way to the Supreme Court. I can't wait till the Supremes kick his butt to the curb Monday.
> 
> That will be one step closer to doomsday for Chuckles and company.


You do realize if a contempt life will go on for E*, and if no contempt TiVo will be in far worse shape?

Maybe the TiVo supporters realize this, why they so want to see Charlie fold now. Otherwise Tivo could be in for a big shock.


----------



## jacmyoung

Ergan's Toupe;1815151 said:


> While I have no doubt that Chuckles is going to appeal a contempt charge, I think it's more important that he doesn't get the stay....


Again I have never seen a contempt not stayed on appeal. Besides even if a contempt, there does not mean any serious sanction to go with it, so I don't even know what you TiVo folks mean by a stay, stay of what?

Whether the DVRs must be disabled or not most certainly will have to wait till the appeals court speaks, even if a contempt.

Usually after the appeals court upholds a contempt ruling, that is when the lower court will consider the next step to enforce the order.


----------



## James Long

Ergan's Toupe;1815142 said:


> Doesn't explain why Charlie pushed this all the way to the Supreme Court. I can't wait till the Supremes kick his butt to the curb Monday.


We're not talking about SCOTUS, we're talking about contempt of the injunction. Two completely separate issues. A SCOTUS decision not to grant cert does not mean DISH is in contempt.

DISH has the right to pursue their case to the highest authority. DISH believes they were right in the original case and an error was made by the lower court. It is their government given right to appeal. That is why DISH has "pushed this all the way to the Supreme Court". Because it is stupid to give up before the fight is done. Besides, there is no harm in pursuing it further ... DISH can only benefit by appealing. Not getting cert just means that they pay what they owe. Getting cert means there is a chance of a reversal.

On the contempt issue when Judge Folsom rules against DISH or Tivo the loser will appeal. If DISH is found in contempt and especially if they don't get a stay from some court then the stakes are raised but at the end of the process not asserting their rights is the worst decision. They believe they are right.


----------



## nobody99

jacmyoung said:


> You simply refuse to read the law and continue to use your own belief as if it is a fact.


Pot, meet kettle. Wow, that's amazing, jacmyoung, you just described yourself to a "T"!!! :lol: :lol:


----------



## nobody99

jacmyoung said:


> Absolutely the opposite, it is much more difficult to find contempt than to find infringement. You simply refuse to read the law and continue to use your own belief as if it is a fact.


For what it's worth, I said it would be much harder to *overturn *contempt on *appeal *than it would be to *overturn *infringement on *appeal*.

Your fantasy-world, jedi-mind trick translator somehow turned this into "find contempt" or "find infringement." Please pay attention. James said that DISH could *appeal *a *finding *of contempt.


----------



## nobody99

James Long said:


> On the contempt issue when Judge Folsom rules against DISH or Tivo the loser will appeal. If DISH is found in contempt and especially if they don't get a stay from some court then the stakes are raised but at the end of the process not asserting their rights is the worst decision.


I completely agree...they would be foolish not to fight this through every avenue open to them.



> They believe they are right.


I'm not so sure of that.


----------



## Curtis0620

jacmyoung said:


> You do realize if a contempt life will go on for E*, and if no contempt TiVo will be in far worse shape?
> 
> Maybe the TiVo supporters realize this, why they so want to see Charlie fold now. Otherwise Tivo could be in for a big shock.


Wow. What did TiVo ever do to you.

TiVo has a deal with Directv, so they will live on either way. The struggles for E* this year (subs, AT&T, etc.) and the low outlook for 2009, paints a very bad picture for E*. They better hope they didn't push this too far. If anyone has their DVR shut off, that will now have a much greater impact than a year ago.


----------



## Greg Bimson

jacmyoung said:


> Absolutely the opposite, it is much more difficult to find contempt than to find infringement. You simply refuse to read the law and continue to use your own belief as if it is a fact.


I'll say that you are spot-on with this assessment, as summary contempt is a bit harder to prove than finding infringement. However...


jacmyoung said:


> Now the question is really, what is the likelihood of a contempt? No matter what you think, as long as Charlie believes the law is on his side as far as the contempt goes, that is the card he is holding. All the case law are on his side. So yes from the standpoint of the position he is in in this game, he is currently in the best position compared to all previous ones, relatively speakng of course.


However, I believe none of the case law used by DISH/SATS can be applied to this motion for contempt.

Remember, according to Mr. Ergen, this is now about DISH/SATS proving they no longer infringe. Except the contempt case is not about proving infringement. And TiVo certainly doesn't believe DISH/SATS no longer infringe.


jacmyoung said:


> BTW, Greg the stake is not any higher. Back two years ago E* had to put down a very large sum of money into the escrow, right now they are arguing the additional damages during the stay.
> 
> It was clear that the judge will not give TiVo the $220 million, if no contempt. While the E*'s $16 million is a minimum, if no contempt, the amount will be close even if you use TiVo's rates.


You are missing the point.

DISH/SATS put $97 million in escrow to pay for the damages accrued until 8 September, 2006. There is an argument now for between $16 million and $220 million for the period between 9 August, 2006 and 18 April, 2008.

There will also be an argument for damages since 19 April, 2008. Those are damages during the period of contempt, and if found in contempt, there will be more damages piled on if DISH/SATS appeals, until the Court of Appeals rules.

I know many have a hard time believing this, but TiVo is holding most of the cards.


jacmyoung said:


> Again I have never seen a contempt not stayed on appeal. Besides even if a contempt, there does not mean any serious sanction to go with it, so I don't even know what you TiVo folks mean by a stay, stay of what?
> 
> Whether the DVRs must be disabled or not most certainly will have to wait till the appeals court speaks, even if a contempt.
> 
> Usually after the appeals court upholds a contempt ruling, that is when the lower court will consider the next step to enforce the order.


If the contempt motion is granted, Judge Folsom will issue another order compelling DISH/SATS to disable DVR's listed in the injunction. DISH/SATS counsel McElhinny asked if Judge Folsom would stay this order, and Judge Folsom replied that it would be highly unlikely he would stay his own order.

But here is the kicker...

DISH/SATS, to same Court of Appeals as two years ago:
Please stay Judge Folsom's order to disable our DVR's

Deja vu? And TiVo has a chance to respond.


----------



## Ergan's Toupe

James Long said:


> DISH has the right to pursue their case to the highest authority. DISH believes they were right in the original case and an error was made by the lower court. It is their government given right to appeal.


The verdict held up on appeal.

Remember Charlies spiel about the "Herculean" effort to get around Tivo's patent?

Charlie already admitted he was wrong by creating his "design around". The only reason to take it to the Supreme Court was to waste time and money.

The only way the Supreme Court entertains this is if Chuckles put a big enough check in the envelope.


----------



## nobody99

Greg Bimson said:


> DISH/SATS put $97 million in escrow to pay for the damages accrued until 8 September, 2006. There is an argument now for between $16 million and $220 million for the period between 9 August, 2006 and 18 April, 2008.


Greg, I think it's worse for DISH that this. I believe the numbers ($220 million vs $16 million) only deal with the time that the _original_ software was still on the DVRs. So it is a foregone conclusion that TiVo will collect something for this period. Even in a best-case scenario for DISH (Judge Folsom temporarily goes insane and allows the new software), DISH will _still_ owe money. I would suspect it would be closer to TiVo's number than DISH's. But let's just split the difference and call it $100 million.


----------



## jacmyoung

Curtis0620 said:


> Wow. What did TiVo ever do to you.
> 
> TiVo has a deal with Directv, so they will live on either way. The struggles for E* this year (subs, AT&T, etc.) and the low outlook for 2009, paints a very bad picture for E*. They better hope they didn't push this too far. If anyone has their DVR shut off, that will now have a much greater impact than a year ago.


Why? We are talking about 4 million DVRs counted from two years ago, at this point it will probably only be around 3 million of the same ones still connected, assume many had since upgraded or left. Why is it now more impacted?

As time moves on the impact will be less, give it another year most of them could be all obsolete.

What did TiVo do to me? Nothing, I have always wanted TiVo and E* to work together, I have always thought they two make the best partners.

The deal with D*? Did you not read that D* in their most recent one-year outlook on their DVR plans never mentioned one word of TiVo? Did you not read that D* has been moving DirecTiVo folks to their own HR2x DVRs, so much so TiVo had lost over 580,000 DirecTiVo subs in the last FY and the churn is on going?

Have you not read that TiVo had a total of 4.4 million subs at the beginning of 2007, and by the last quarter only 3.6 million left? How is the project going with Comcast? They have been saying for over a year they would "flip the switch" to roll out the TiVo service, have you heard of the switch flipping yet?

TiVo needs to realize they cannot afford a no contempt ruling, E* is all they have got, because they have this $120 million in the escrow as leverage. TiVo needs E* more so than E* needs TiVo. TiVo's long term survival depends on E*, because they can't depend on D*, D* clearly cares little about TiVo, and they can't depend on cable, who can depend on cable anyway?


----------



## jacmyoung

Greg Bimson said:


> ...However...However, I believe none of the case law used by DISH/SATS can be applied to this motion for contempt....


Let me say just one thing, if none of the case law that have been used regularly by the courts in contempt proceedings, in your view, or in TiVo's view, are relevant, then TiVo should be very concerned, because those cases all are, it is only TiVo's oppinion they are not applicable.

Anyone who cares to read all the prior cases and knows how consistently they have been cited by the courts will have to bet against the notion that those cases do not apply in this case. This case is not unique, Judge Folsom said so when he denied TiVo's treble and attorney fees request.

For the same reason he will deny TiVo's contempt request, because as the judge said in the above decision, there was nothing special about this case, only TiVo thought so, and TiVo continues to think this case is special, the judge will have to tell them again no this case is not special.

There is no reason for judge Folsom to want to make this case special, he already said on 9/4 he had more important cases to tend to, this one would have to be put on the back burner. Judge Folsom sees similar cases in his court room all the time.


----------



## Greg Bimson

nobody99 said:


> Greg, I think it's worse for DISH that this. I believe the numbers ($220 million vs $16 million) only deal with the time that the original software was still on the DVRs. So it is a foregone conclusion that TiVo will collect something for this period.


From the 4 September hearing, just bits and pieces...

Damages period from 9 September, 2006 to 18 April 2008
Damages in three categories
First category: Adjudicated DVR's (TiVo states $55M; DISH states $16M) until the new software implemented; TiVo is including lost profits
Second category: $113M - Adjudicated DVR's with new software
Third category: $52M - placements of the new, modified DVR's (remember that TiVo has pointed out that the modified versions of the Infringing Products still infringe, so if Judge Folsom goes the extra mile and determines the modifications still infringe then this is in play)


----------



## Ergan's Toupe

jacmyoung said:


> There is no reason for judge Folsom to want to make this case special, he already said on 9/4 he had more important cases to tend to, this one would have to be put on the back burner. Judge Folsom sees similar cases in his court room all the time.


Making stuff up again, Jacy? 

Could you show us where exactly Folsom said he had "more important cases to tend too" "this one will have to be put on the back burner"?

I'll be waiting.


----------



## Greg Bimson

jacmyoung said:


> Let me say just one thing, if none of the case law that have been used regularly by the courts in contempt proceedings, in your view, or in TiVo's view, are relevant, then TiVo should be very concerned, because those cases all are, it is only TiVo's oppinion they are not applicable.


The case law for contempt is used regularly. Using standards from KSM is only applicable when accusing an infringer of sales, use or manufacture of an infringing product not more than colorably different from the enjoined products.

KSM has never applied to specifically enjoined products adjudicated as infringements. So the party asking for precedential and preferential treatment is DISH/SATS.


----------



## jacmyoung

Greg Bimson said:


> The case law for contempt is used regularly.  Using standards from KSM is only applicable when accusing an infringer of sales, use or manufacture of an infringing product not more than colorably different from the enjoined products.
> 
> KSM has never applied to specifically enjoined products adjudicated as infringements. So the party asking for precedential and preferential treatment is DISH/SATS.


That is only what you say, or what you have heard what TiVo was saying.

When the judge makes his ruling, KSM will be the case he will cite, just like all other contempt cases, because this case is not unique.

To say KSM does not apply to this case is the same as saying this case is so unique, but the judge had already told TiVo no, your case is not special.


----------



## Greg Bimson

jacmyoung said:


> When the judge makes his ruling, KSM will be the case he will cite, just like all other contempt cases, because this case is not unique.


When a judge issues a contempt order against a reporter for not divulging his source, does he use KSM?

The MLKJr. case that TiVo quotes, Walker v. City of Birmingham, does not discuss infringement, yet it was a contempt proceeding.

Don't act like contempt can only take one form and it must adhere to KSM. That is a large leap of faith.


----------



## jacmyoung

Ergan's Toupe;1815300 said:


> Making stuff up again, Jacy?
> 
> Could you show us where exactly Folsom said he had "more important cases to tend too" "this one will have to be put on the back burner"?
> 
> I'll be waiting.


Only if there is another person (nobody99 not withstanding) asking the same question will I try to quote what the judge said on 9/4. Otherwise you will just have to go read for yourself, like I have asked you to do many times in the past whenever you asked similar questions as the result of you not willing to read for yourself, or not understanding what you were reading.


----------



## Ergan's Toupe

jacmyoung said:


> but the judge had already told TiVo no, your case is not special.


Cite, please....


----------



## nobody99

jacmyoung said:


> To say KSM does not apply to this case is the same as saying this case is so unique, but the judge had already told TiVo no, your case is not special.


No.



KSM said:


> In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer *by reason of a manufacture which was not the subject of the original litigation*, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings.


----------



## jacmyoung

Greg Bimson said:


> When a judge issues a contempt order against a reporter for not divulging his source, does he use KSM?
> 
> The MLKJr. case that TiVo quotes, Walker v. City of Birmingham, does not discuss infringement, yet it was a contempt proceeding.
> 
> Don't act like contempt can only take one form and it must adhere to KSM. That is a large leap of faith.


I hope you are not serious. None of the above cases are related to contempt in patent cases, not to mention the Dr. King's case will be irrelevant if there is no contempt, as the judge asked TiVo's Mr. Chu, if I found E* not in violation on the face, what did that leave you? No real answer to that.

The two cases TiVo cited (BTW I do not recall TiVo citing that reporter's case) will only be relevant if the judge finds E* in violation of his order.

But E* will not be in violation of his order, and if so, of course both cases cited by TiVo will not be applicable.

All post-KSM contempt rulings in patent cases with design around, all of them, used KSM as guide, that is precisely why I said don't think your case is so unique.


----------



## Ergan's Toupe

jacmyoung said:


> Only if there is another person (nobody99 not withstanding) asking the same question will I try to quote what the judge said on 9/4. Otherwise you will just have to go read for yourself, like I have asked you to do many times in the past whenever you asked similar questions as the result of you not willing to read for yourself, or not understanding what you were reading.


That's my point. I have read the transcript (5 times actually) I didn't see that quote anywhere.

Care to show us? Or should we just assume you made that up?

PS: It is not my job to research your babbling. It is your job to provide proof when asked.


----------



## nobody99

jacmyoung said:


> Only if there is another person (nobody99 not withstanding) asking the same question will I try to quote what the judge said on 9/4. Otherwise you will just have to go read for yourself, like I have asked you to do many times in the past whenever you asked similar questions as the result of you not willing to read for yourself, or not understanding what you were reading.


Jacmyoung, once again your jedi mind trick, fantasyland reality interpretation device is not working properly. Sorry ET, I couldn't resist. I know you were just egging him on 



jacmyoung said:


> he already said on 9/4 he had *more important* cases to tend to, this one would have to be *put on the back burner
> *





Honorable Judge Folsom said:


> Wish I could say I had the time to have an order out on both issues in a day or two. Obviously Mr. McElhinny and Mr. Baxter are keeping me quite busy on another matter very soon in October in Marshall, and other matters. So I don't know if I can have an order out prior to being off to Marshall for most of the month of October or not, but I will give it all the attention I can when I can.


Can you please explain where he says that the other cases are "more important?" And where does he mention "backburner?"


----------



## nobody99

jacmyoung said:


> All post-KSM contempt rulings in patent cases with design around, all of them, used KSM as guide, that is precisely why I said don't think your case is so unique.


No. Only in cases "by reason of a manufacture which was not the subject of the original litigation"


----------



## Greg Bimson

jacmyoung said:


> All post-KSM contempt rulings in patent cases, all of them, used KSM as guide, that is precisely why I said don't think your case is so unique.


Try this...

All post-KSM contempt rulings in *motions accusing a device of infringement against an injunction against infringement*, all of them, used KSM as a guide.

Except this is not a motion for contempt against patent infringement. These are receivers already found as infringements.


----------



## jacmyoung

Greg Bimson said:


> Try this...
> 
> All post-KSM contempt rulings in *motions accusing a device of infringement against an injunction against infringement*, all of them, used KSM as a guide.
> 
> Except this is not a motion for contempt against patent infringement. These are receivers already found as infringements.


Try this, all contempt proceedings in patent cases where design around were an issue, all of them use KSM, so unless you believe this case is historical, then KSM will be used here too.

If you read the whole thing on 9/4 carefully, both E* and TiVo's lead attorneys asked the judge to move the case along.

TiVo's attorney asked him to at least schedule the next hearing, say two months from now, sounded reasonable? Did the judge care? No.

E* attorney asked the judge to resolve the discovery issue in the afternoon or on Monday, did the judge care? No.

Both the above requests appeared quite reasonable, after all, if we have to wait till the end of November for a ruling then decide what will be the next step, it will be another 2 months of delay. So why not just simply set a date two months from 9/4?

Because he did not care. He said he had no time, not even another hour, and he did not return to hear it on the next Monday either. He had other things to tend to.

So far he has not issued a ruling, therefore it is likely he had not spent any time on this case yet. While he said he would try and do so by 10/1, if not he would have to first go back to Marshall, TX, and there would be another case or two to deal with, and only after that he would be able to do some "looking" into this case. Of course if he does, he will give it all his attention, but this case certainly is not important to him to justify a priority ruling. Would it be possible that a ruling would show up anytime now? Of course, but so far the evidence do not point to that direction.

Let's face it, this case is not special to him, it is no different than the Paice v. Toyota case, no different than the other cases in front of him, and certainly no different than all the other patent infringement contempt cases where design around issues were involved.

Did I mention this case is not special?

TiVo's mistake is they believe this case is historical, "far more reaching" than even the Blackberry's case of "a couple of million users". But no, this case is not far more reaching, it is just one of the many cases. It did not deserve another hour of the judge's time on 9/4, not even his effort to set a new court date two months from that time.


----------



## Ergan's Toupe

Greg Bimson said:


> Try this...
> 
> All post-KSM contempt rulings in *motions accusing a device of infringement against an injunction against infringement*, all of them, used KSM as a guide.
> 
> Except this is not a motion for contempt against patent infringement. These are receivers already found as infringements.


But these are _"different"_ receivers. Those receivers disappeared. Charlie is happy with the injunction.

Did I get that right, Curt?


----------



## Greg Bimson

jacmyoung said:


> Try this, all contempt proceedings in patent cases where design around were an issue, all of them use KSM, so unless you believe this case is historical, then KSM will be used here too.


Except those design-arounds were not the adjudicated devices subject to a disable order and already found infringing.

So again, the use of KSM in this case would be historical. The belief that KSM applies to this case is hysterical.


----------



## nobody99

jacmyoung said:


> Try this, all contempt proceedings in patent cases where design around were an issue, all of them use KSM, so unless you believe this case is historical, then KSM will be used here too.


Honestly, why do you keep ignoring the context of KSM?

*"by reason of a manufacture which was not the subject of the original litigation"*

When you have a false premise, your conclusion is suspect.


----------



## James Long

nobody99 said:


> They believe they are right.
> 
> 
> 
> I'm not so sure of that.
Click to expand...

I am reasonably sure they believe they are right ... whether or not they are right is a question for the court. 


Curtis0620 said:


> TiVo has a deal with Directv, so they will live on either way.


Tivo will live better if they get a contempt verdict. Tivo needs a victory to keep the industry in line. Once DISH (and others) prove that one can have a functional and award winning "better than Tivo" DVR without paying Tivo the value of deals with Tivo is much less.


Ergan's Toupe;1815208 said:


> James Long said:
> 
> 
> 
> DISH has the right to pursue their case to the highest authority. DISH believes they were right in the original case and an error was made by the lower court. It is their government given right to appeal.
> 
> 
> 
> The verdict held up on appeal.
Click to expand...

So far. But there is still an appeals path to follow ... DISH isn't giving up.


> The only way the Supreme Court entertains this is if Chuckles put a big enough check in the envelope.


Now you're accusing SCOTUS of being corrupt? Unreal.


----------



## Ergan's Toupe

James Long said:


> So far. But there is still an appeals path to follow ... DISH isn't giving up.
> Now you're accusing SCOTUS of being corrupt? Unreal.


On what grounds do you feel the SCOTUS should take this case?


----------



## nobody99

Ergan's Toupe;1815492 said:


> On what grounds do you feel the SCOTUS should take this case?


Techincally, has already decided to take it or not  I wish we could find out sooner!


----------



## jacmyoung

Greg Bimson said:


> Except those design-arounds were not the adjudicated devices subject to a disable order and already found infringing.


Desgin around has always been about the adjudicated devices or devices only colorably different than the adjudicated devices, this case is the same. There had never been one time the court tried to say oh BTW devices already sold did not count. Remember the defendant gets the benefit of what was not said.



> So again, the use of KSM in this case would be historical. The belief that KSM applies to this case is hysterical.


So again let's try the logic one more time:

All past patent infringement contempt cases used KSM as the standard. If this case also uses KSM as the standard, it is not historic, it is the norm.

If this case does not use KSM, therefore is not like all other cases before it, then this case will be historic.

The belief that this case is historic is indeed hysterical because the judge already said it was not special to him.


----------



## nobody99

jacmyoung said:


> All past patent infringement contempt cases used KSM as the standard. If this case also uses KSM as the standard, it is not historic, it is the norm.
> 
> If this case does not use KSM, therefore is not like all other cases before it, then this case will be historic.
> 
> The belief that this case is historic is indeed hysterical because the judge already said it was not special to him.


*"by reason of a manufacture which was not the subject of the original litigation"*

If Judge Folsom applies KSM to this case, it could overturned on appeal based on that decision alone. KSM does not apply to already-adjudicated devices. You can tell yourself it does over and over again, that doesn't make it magically apply.


----------



## jacmyoung

nobody99 said:


> *"by reason of a manufacture which was not the subject of the original litigation"*
> 
> If Judge Folsom applies KSM to this case, it could overturned on appeal based on that decision alone. KSM does not apply to already-adjudicated devices. You can tell yourself it does over and over again, that doesn't make it magically apply.


The KSM was about the already-adjudicated devices, you again failed to read where Curtis52 and Greg were debating before.

The KSM case was a case in front of the appeals court, at the time the appeals court was faced with the already-adjudicated devices, the ones that were modified but still adjudicated during the contempt proceeding at the district court level as to still in violation of the order.

The apeals court told the lower court, but you may not find the use of those already-adjudicated devices in contempt without first finding infringement with clear and convincing evidence.

Because at the appeals court level, all devices in front of it are already-adjudicated devices, not already adjudicated devices will never get to the appeals court level until they first are adjudicated by the lower courts.

Yes, KSM was an appeals court case we are talkng about, and it was about already-adjudicated devices.

That is why KSM has always been used in all patent infringement contempt cases, when design around was involved, there was no exception, nor will this one be an exception.


----------



## Ergan's Toupe

nobody99 said:


> Techincally, has already decided to take it or not  I wish we could find out sooner!


I wonder if the involved parties find out early. I would think they do, no?


----------



## jacmyoung

The TiVo folks very much like to forget the question the judge kept asking on 9/4, what if I did not find E* in violation on the face, what did that leave you?

Later in the damage discussion, he asked again:

"Okay. Well, Let me-and I know you obviously disagree, but let me ask you to assume first that I find that contempt on the face of the order is not appropriate, and then for whatever reason let's say I decide that this is best determined by the action either in Delaware or a new action here. Where does that leave you on your damages?"

Here again the judge had clearly laid out a possible path where he could end the case if he found E* not in contempt on the face of the order. The Delaware case will take over, or a "new action" in his courtroom will take over, which meant a new case filed by TiVo on the new design around in Texas.

As I said there is a chance once the judge finds E* not in contempt on the face of the order, he could end this case. He refused to grant Mr. Chu's request on 9/4 to schedule another hearing two months later, now you know what the judge might be thinking.

I am not saying this will be the path the judge will take, but when he repeatedly tried to ask TiVo's attorneys what their responses would be under such a scenario, you must admit such scenario is real. The judge would not have wasted time to *repeatedly* ask such question if it simply had no chance at all.

Did Judge Folsom appear to any of you that he had a lot of time to ask useless questions?


----------



## Ergan's Toupe

jacmyoung said:


> Did Judge Folsom appear to any of you that he had a lot of time to ask useless questions?


No, he was too busy laughing at and scolding Charlie's hired guns. :lol:


----------



## nobody99

jacmyoung said:


> The KSM case was a case in front of the appeals court, at the time the appeals court was faced with the already-adjudicated devices, the ones that were modified but still adjudicated during the contempt proceeding at the district court level as to still in violation of the order


jacmyoung, if you are going to flat-out lie, at least lie about things that can't proven with a simple quote.



KSM said:


> Pursuant to a settlement agreement between the parties, which was entered as a consent decree on March 6, 1980, Jones acknowledged the validity of the KSM patent, admitted infringement thereof by its *THERMAL-LOCK* device, and was enjoined from further infringement.
> 
> Jones subsequently put out a modified refractory anchor *(ULTRA-LOK I)* and on September 22, 1981, KSM moved the court to punish Jones for contempt for violation of the injunction. On July 17, 1984, the court found Jones in contempt by reason of Jones' manufacture and sale of the ULTRA-LOK I device and another model, *ULTRA-LOK II*, which Jones began marketing in late 1983 or early 1984. This appeal followed.1


First off, the THERMAL-LOCK was the device that infringed on that patent. That is the "adjudicated" device (not really, since it was a settlement agreement before it was actually found to infringe).

The Ultra-Lok I and Ultra-Lok II were not adjudged. It is these devices which were subject to the injunction. Note that they were newly-manufactured, and not already installed. And when the court says



> In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer *by reason of a manufacture which was not the subject of the original litigation*, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings.


it's plain to see why the court made the decision it did:



> Under the standard we conclude is appropriate, the judgment must be set aside as a matter of law because of the refusal of the district court to consider whether the Jones *ULTRA-LOK* devices infringed the claims of the '217 patent. Moreover, the question whether contempt proceedings involving the *ULTRA-LOK* devices are appropriate must also be reexamined. Therefore, upon remand, the district court is directed to reconsider whether, under the standard set forth herein, infringement with respect to the *ULTRA-LOK* devices should be tested in contempt proceedings.


So you can clearly see that the injunction was for THERMAL-LOCK devices, but KSM was trying to have contempt against ULTRA-LOCK.

In our case, the already-installed devices are THERMAL-LOCKS, and the newly-manufactured devices are ULTRA-LOCKS.

I can hardly wait for how your fantasy-land interpretation will play out on this one :lol:


----------



## nobody99

jacmyoung said:


> He refused to grant Mr. Chu's request on 9/4 to schedule another hearing two months later, now you know what the judge might be thinking.


Yes. He's thinking that Chu's request for discovery to determine colorable differences for the new receivers is premature. I'm sure he's thinking that DISH will settle once he makes it clear that contempt will be found.


----------



## Greg Bimson

jacmyoung said:


> The apeals court told the lower court, but you may not find the use of those already-adjudicated devices in contempt without first finding infringement with clear and convincing evidence.


No.

The consent decree named the Therma-lok product as an infringing product, and the injunction enjoined its sale. KSM then filed a contempt motion regarding the Ultra-lock products. The Court of Appeals reversed the granted contempt motion, stating that infringement must be found before contempt can be granted.

In other words, a modified product "not the subject of the original litigation" must be found to infringe.

And the standard does not apply to devices already found to infringe.


> ...where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings. KSM


And because TiVo is simply asking that the disable order be followed, the above does not apply.

In other words, the courts do not have to excercise restraint in affording the patent owner the benefit of contempt proceedings *when talking about adjudicated devices*. After all, these are the devices subject to the original litigation.


----------



## James Long

nobody99 said:


> Yes. He's thinking that Chu's request for discovery to determine colorable differences for the new receivers is premature. I'm sure he's thinking that DISH will settle once he makes it clear that contempt will be found.


There are two directions for Tivo to go ... if contempt is found it basically means that the existing placed receivers cannot be modified - the old receivers are dead (after all appeals are exhausted) and Tivo can move on to unnamed receivers (ViPs). If contempt is not found then Tivo needs to move on to claiming infringement on the existing named and placed products. It would be premature for Judge Folsom to grant a speculative hearing date when he hasn't ruled on a key point in the case.

Judge Folsom could rule contempt purely on the basis of Walker and not touch the infringement issue ... DISH would be in contempt for not following the injunction to the letter but Tivo would still have to pursue actual infringement contempt on the named products. Walker is a weird type of contempt. One can be innocent of the underlying offense yet still be held in contempt for disobeying the court process.

I don't know how famous Judge Folsom wants to be and what law he wants to make. I'd love to see a verdict of Contempt with no "shut off" penalty ... holding DISH accountable for not following the legitimate order of the court but accepting that had DISH followed a different path of notification there would be no contempt and then deal with the issue of contempt by infringement separately.


----------



## Ergan's Toupe

If anyone is interested in the Supreme Court ruling on Monday, refresh this page at 10 am Monday 10/6.

http://www.supremecourtus.gov/orders/07ordersofthecourt.html

Click on the link that will say "10/06/08 Order List".


----------



## Ergan's Toupe

James Long said:


> I don't know how famous Judge Folsom wants to be and what law he wants to make. I'd love to see a verdict of Contempt with no "shut off" penalty


If there is no "shut off penalty" what would DISH be in contempt of?

I thought the contempt charge was brought up because the boxes were not shut off.


----------



## nobody99

James Long said:


> I don't know how famous Judge Folsom wants to be and what law he wants to make. I'd love to see a verdict of Contempt with no "shut off" penalty ... holding DISH accountable for not following the legitimate order of the court but accepting that had DISH followed a different path of notification there would be no contempt and then deal with the issue of contempt by infringement separately.


I agree that this is how the case _should _have gone. However, there is still the issue of procedure. If the meaning of the injunction is changed to allow DISH to put new software on the adjudicated receivers, it's not fair to TiVo either - they would have had a chance to argue for particular wording in the injunction. Now they don't get that chance. Let's face it, the remand on the hardware complicated this whole thing beyond all recognition.:nono2:


----------



## Ergan's Toupe

nobody99 said:


> Let's face it, the remand on the hardware complicated this whole thing beyond all recognition.:nono2:


That is an excellent point. Why did Tivo seem to just give up on the hardware issue?


----------



## Greg Bimson

Because it wouldn't have been adjudicated by now.

Plus, since it appears DISH/SATS are no longer using an index table nor media switch, they may have bypassed the hardware claims altogether.

What would be the use of bringing up the hardware claims when the software claims are probably the strongest of the patent, and the infringement still applies?


----------



## Ergan's Toupe

Greg Bimson said:


> Because it wouldn't have been adjudicated by now.
> 
> Plus, since it appears DISH/SATS are no longer using an index table nor media switch, they may have bypassed the hardware claims altogether.
> 
> Says DISH. I think we are going to find out soon enough, tho.
> 
> What would be the use of bringing up the hardware claims when the software claims are probably the strongest of the patent, and the infringement still applies?


Because it would have left no doubt about the meaning of the injunction. The injunction was written with the hardware as well as the software in mind.


----------



## Curtis52

Greg Bimson said:


> No.
> 
> The consent decree named the Therma-lok product as an infringing product, and the injunction enjoined its sale. KSM then filed a contempt motion regarding the Ultra-lock products.


Therma-Lok was not mentioned in the injunction and neither was infringement. The district court determined that Ultra-Lok was "of the type and nature identified by the Plaintiff" and therefore enjoined.



> The Defendant ... [is] enjoined and restrained from making, using or selling insulation hangers or refractory anchors of the type and nature identified by the Plaintiff in its Complaint against the Defendant for the remainder of the life of U.S. Patent No. 3,738,217 issued June 12, 1973.


----------



## nobody99

Ergan's Toupe;1815639 said:


> Because it would have left no doubt about the meaning of the injunction. The injunction was written with the hardware as well as the software in mind.


Yes, that's exactly what I'm getting at. Judge Folsom's intent might have been to disable DVR functionality because he thought it would be impossible to bypass the hardware. If he knew that the hardware portion would be remanded, he might have worded things differently.

That said, I think I am getting a bit too hung up on the software/hardware differences. Even the appeals court said that the "hardware" claim still relied to some extent on software.


----------



## nobody99

Curtis52 said:


> Therma-Lok was not mentioned in the injunction and neither was infringement.


Wow. Really?



ksm said:


> Pursuant to a settlement agreement between the parties, which was entered as a consent decree on March 6, 1980, Jones acknowledged the validity of the KSM patent, *admitted infringement thereof by its THERMAL-LOCK device, and was enjoined from further infringement.*


I can't think of how you could be more incorrect :lol:


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## Ergan's Toupe

nobody99 said:


> Wow. Really?
> 
> I can't think of how you could be more incorrect :lol:


Well that didn't take very long. :lol:


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## Greg Bimson

Curtis52 said:


> Therma-Lok was not mentioned in the injunction and neither was infringement.





> The Defendant ... [is] enjoined and restrained from making, using or selling insulation hangers or refractory anchors of the type and nature identified by the Plaintiff in its Complaint against the Defendant for the remainder of the life of U.S. Patent No. 3,738,217 issued June 12, 1973.


The injunction refers to the complaint. You can bet Therma-Lok is in the complaint.


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## Curtis52

Greg Bimson said:


> The injunction refers to the complaint. You can bet Therma-Lok is in the complaint.


The injunction says "type and nature". That is much more inclusive than naming a specific device.


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## jacmyoung

Greg Bimson said:


> No.
> 
> The consent decree named the Therma-lok product as an infringing product, and the injunction enjoined its sale. KSM then filed a contempt motion regarding the Ultra-lock products. The Court of Appeals reversed the granted contempt motion, stating that infringement must be found before contempt can be granted.
> 
> In other words, a modified product "not the subject of the original litigation" must be found to infringe.
> 
> And the standard does not apply to devices already found to infringe.And because TiVo is simply asking that the disable order be followed, the above does not apply.
> 
> In other words, the courts do not have to excercise restraint in affording the patent owner the benefit of contempt proceedings *when talking about adjudicated devices*. After all, these are the devices subject to the original litigation.


Let me try this again.

In the KSM case, there was this path:

Patentee to the lower court-defendant in violation for using these products because they were the same as the adjudicated devices-lower court-agreed, the products were the same-contempt of the order-on appeal-defendant to the appeals court-there were differences in those products-appeals court agreed-contempt overturned-remand to the lower court-lower court to look at the differences-then make a ruling again.

The above path is the same in *ALL* contempt proceedings in patent infringement cases where design around is present. That is why the KSM appeal case is the standard, used in all such cases where design around are present, no exceptions.

In this case, here is the path:

TiVo to the lower court-E* in violation for using these DVRs because they are the same as the adjudicated DVRs-lower court-(if) agreed, the DVRs are the same-contempt of the order-on appeal-E* to the appeals court-there are differences in those DVRs-appeals court agrees-contempt overturned-remand to the lower court-lower court to look at the differences-then make a ruling again.

The same path, because this case is no different than all other similar cases, this case is not special, it is not historic, the judge already said this case was not special.

The argument that the DVRs were already at the end users will not work because TiVo is trying to make this case a special case, unlike all other cases. TiVo is asking the courts to establish a new special kind of standard, one reserved especially for the adjudicated products already at the end users.

The point to understand is, to do so requires the establishment of a new standard, such standard has not been established yet to make the products already in the field an exception, until such exception is made into a standard, it cannot apply here.

The mistake TiVo is making is somehow they believe the courts will make some special rule just for this case. Even if true, it will have to be done up on the very high level, and contested to ensure it will stand. This process will be time consuming and be faced with repeated challenges, before a standard may be established.

Until then, the defendant gets the benefit of not having such special standard. Because the defendant gets the benefit of any ambiguity, any doubt, any less than clear definitions.

TiVo needs to have that special standard first established, good luck with that.


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## nobody99

jacmyoung said:


> Patentee to the lower court-defendant in violation for using these products *because they were the same as the adjudicated devices*-lower court-agreed, the products were the same-contempt of the order-on appeal-defendant to the appeals court-there were differences in those products-appeals court agreed-contempt overturned-remand to the lower court-lower court to look at the differences-then make a ruling again.


Can I point out the flaw in your logic? The big, gigantic, gaping-hole of a flaw?

"the same as the adjudicated products" is not the same as the _actual_ adjudicated products.

That is the whole point. The weren't held in contempt _because_ they weren't the actual products for which a legal decision had already been rendered!


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## Greg Bimson

jacmyoung said:


> Let me try this again.
> 
> In the KSM case, there was this path:
> 
> Patentee to the lower court-defendant in violation for using these products because they were the same as the adjudicated devices


And we can stop right here because this is flat out wrong. The Ultra-lock products were not "the same as the adjudicated devices", which were the Therma-lok products.

Because KSM was a consent decree, with an injunction that did not follow Rule 65(d), and an over-reaching injunction, the district court simply applied the injunction wording against the product and found it was within the scope of the injunction and should also be enjoined.

However, Jones (the infringer) felt that the standard which should be used is to check for infringement first. That infringement must be compared to the adjudicated product.


jacmyoung said:


> The above path is the same in *ALL* contempt proceedings in patent infringement cases where design around is present.


But only when accusing a device of infringement that has not been adjudged nor addressed by the court.

The accusation here is not infringement. The accusation is simply not following a direct order. Although DISH/SATS says they've followed it. To the letter. Yet the injunction is active and in full force and effect, and nothing is currently disabled. And about three million DVR's in the hands of customers have been ruled as infringements and are subject to that order.


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## Curtis52

Greg Bimson said:


> Because KSM was a consent decree, with an injunction that did not follow Rule 65(d), and an over-reaching injunction, the district court simply applied the injunction wording against the product and found it was within the scope of the injunction and should also be enjoined.


At that point, there was no doubt that Ultra-Lok was an adjudicated device.



Greg Bimson said:


> However, Jones (the infringer) felt that the standard which should be used is to check for infringement first. That infringement must be compared to the adjudicated product.But only when accusing a device of infringement that has not been adjudged nor addressed by the court.


They were both adjudicated devices. The appeals court said to look at the patent claims.



> Under the standard we conclude is appropriate, the judgment must be set aside as a matter of law because of the refusal of the district court to consider whether the Jones ULTRA-LOK devices infringed the claims of the '217 patent. Moreover, the question whether contempt proceedings involving the ULTRA-LOK devices are appropriate must also be reexamined. Therefore, upon remand, the district court is directed to reconsider whether, under the standard set forth herein, *infringement with respect to the ULTRA-LOK devices should be tested in contempt proceedings.*


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## jacmyoung

Greg Bimson said:


> ...Because KSM was a consent decree, with an injunction that did not follow Rule 65(d), and an over-reaching injunction, ...


Can you quote me the above? Where did the appeals court say the injunction was over-reaching, or rather the contempt ruling was over-reaching?

Two different things you know.


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## nobody99

Curtis52 said:


> At that point, there was no doubt that Ultra-Lok was an adjudicated device.


Do you know what "adjudicated" means? Do you know what an "appeal" is?

When the consent decree was entered, it named a _particular_ device (THERMAL-LOCK). Jones admitted that the THERMAL-LOCK device infringed the patent, and was enjoined from selling, using, etc., it.

Jones then went out and created a new device (ULTRA-LOCK) with some slight changes. That new device, which was _not _part of the consent decree, was nevertheless found to be infringing under the _original _consent decree.

ULTRA-LOCK was never adjudicated. It was never part of the original consent decree. Therefore, the _appeals _court reasoned



ksm said:


> where the patent owner seeks to enforce an injunction against an enjoined infringer* by reason of a manufacture which was not the subject of the original litigation*, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings.


Seriously, why are we having these conversations if people can't understand the most basic of facts?


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## jacmyoung

Because there are people who lack the understanding beyond the physical appearance that in this case, only the software was found to have infringed, and therefore everything prohibited in the order, is to prohibit the continued use of the infringing old software, no more no less. Any interpretation beyond the prohibition of the old software, is wrong.

The only acts an injunction can prohibit are infringement of the patent by the adjudicated devices, and infringement by devices only colorably different than the adjudicated devices, therefore the injunction may only proscribe those specific acts.

Everything in this order, whether the "first order" or the "second order", is to make sure the old infringing software may no longer be used in those DVRs.

If you can wrap your head around this concept, then you are free

If one simply is not capable of thinking beyond that point, or if capable yet refuses to think beyond that, then the judge's ruling will help you in making that effort.

Let me say it again, the only reason to disable "the DVR functionalities" is to disable the old software, because only the use of the old software was *the act* that had infringed, therefore only that *act* may be prohibited in this injunction. And only such interpretation may ensure that this order is in compliance with Rule 65(d).

Any other interpretations trying to insist this order is to prohibit a lot more acts than the above, will render this order *not* in compliance of the Rule 65(d). How much do you want to bet the judge will not like to call his order a bad order just to make TiVo happy?


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## James Long

*Mod Hat On*

I've been sending too many "keep a civil tone" PMs and warnings lately because of this thread. News will break ... and we'll get a new thread. But we've gone circular again and dropped back into regular insults. So let's just call this done until Judge Folsom rules.

Thread closed. Look for the next thread if there is any court action to discuss. A link to the new thread will be added to this thread when news breaks.


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## James Long

Nothing special ... just to note that DISH has changed it's name (last January).

*STIPULATION Joint Stipulation Re: Substitution and Joinder of Parties by TIVO Inc, "EchoStar defendants".*

WHEREAS EchoStar Communications Corporation changed its name to DISH Network Corporation, and
WHEREAS DISH Network Corporation transferred technology and certain infrastructure and assets to EchoStar Corporation;
NOW THEREFORE, the parties stipulate and agree as follows:
1. Pursuant to Rule 25(c) of the Federal Rules of Civil Procedure, DISH Network Corporation will be substituted for EchoStar Communications Corporation;
2. Pursuant to Rule 25(c) of the Federal Rules of Civil Procedure, EchoStar Corporation will be joined as a defendant in this action;
3. The terms "defendant" and "defendants" shall, for all purposes, include DISH Network Corporation and EchoStar Corporation as well as the five original defendants in the action.​
*Rejected by the court on 10/2/08 ...*
NOTICE of Deficiency regarding [861] the STIPULATION Joint Stipulation Re: Substitution and Joinder of Parties by TIVO Inc, "EchoStar defendants". submitted Attorney must file a motion to join additional parties. Correction should be made by one business day.

Thread Remains Closed


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## James Long

Supreme Court Denies Dish appeal on Tivo Case


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## James Long

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


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