# TiVo vs. Dish: TiVo won appeal



## Curtis52

"CONCLUSION 
We have considered the EchoStar’s remaining arguments and do not find them persuasive. Accordingly, the judgment of the district court is 
AFFIRMED "


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## dgordo

CAFC Decision Attached.


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## jacmyoung

Guess I can find a bit consolation that Judge Rader is completely on my side

Will see how Charlie approaches this.


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## Curtis0620

jacmyoung said:


> Guess I can find a bit consolation that Judge Rader is completely on my side
> 
> Will see how Charlie approaches this.


That's easy. Licensing deal.


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## dgordo

TiVo Statement on Decision by U.S. Court of Appeals in Lawsuit Against EchoStar

ALVISO, CA -- 03/04/10 -- TiVo Inc., the creator of and a leader in television services and advertising solutions for digital video recorders (DVRs), offered the following statement today on the U.S. Court of Appeals decision to [ruling] in lawsuit against EchoStar.

"We are pleased that the United States Court of Appeals for the Federal Circuit fully affirmed the district court's finding of contempt against EchoStar, including both the disablement and infringement provisions. Additionally, this ruling paves the way for TiVo to receive the approximately $300M in damages and contempt sanctions awarded to us for EchoStar's continued infringement through July 1, 2009. We will also seek further damages and contempt sanctions for the period of continued infringement thereafter. We will continue our efforts to protect our intellectual property from further infringement."

About TiVo Inc.
Founded in 1997, TiVo Inc. (NASDAQ: TIVO) developed the first commercially available digital video recorder (DVR). TiVo offers the TiVo service and TiVo DVRs directly to consumers online at www.tivo.com and through third-party retailers. TiVo also distributes its technology and services through solutions tailored for cable, satellite, and broadcasting companies. Since its founding, TiVo has evolved into the ultimate single solution media center by combining its patented DVR technologies and universal cable box capabilities with the ability to aggregate, search, and deliver millions of pieces of broadband, cable, and broadcast content directly to the television. An economical, one-stop-shop for in-home entertainment, TiVo's intuitive functionality and ease of use puts viewers in control by enabling them to effortlessly navigate the best digital entertainment content available through one box, with one remote, and one user interface, delivering the most dynamic user experience on the market today. TiVo also continues to weave itself into the fabric of the media industry by providing interactive advertising solutions and audience research and measurement ratings services to the television industry. www.tivo.com

TiVo, 'TiVo, TV your way.', Season Pass, WishList, TiVoToGo, Stop||Watch, Power||Watch, and the TiVo Logo are trademarks or registered trademarks of TiVo Inc. or its subsidiaries worldwide. © 2010 TiVo Inc. All rights reserved. All other trademarks are the property of their respective owners.

FORWARD LOOKING STATEMENT NOTICE

This release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements relate to, among other things, TiVo's future business and growth strategies including TiVo's mass distribution strategy and retail bundling efforts, profitability and financial guidance, distribution of the TiVo service domestically with Comcast, DIRECTV, and Cox and internationally, growth and innovation in TiVo's advertising and audience research measurement business, the timing and availability of broadband content, TiVo's software development for the cable industry including with respect to switch digital technology, the results of TiVo's litigation with EchoStar, how TiVo intends to exploit its intellectual property, TiVo's future marketing spend and related activities, and financial performance. Forward-looking statements generally can be identified by the use of forward-looking terminology such as, "believe," "expect," "may," "will," "intend," "estimate," "continue," or similar expressions or the negative of those terms or expressions. Such statements involve risks and uncertainties, which could cause actual results to vary materially from those expressed in or indicated by the forward-looking statements. Factors that may cause actual results to differ materially include delays in development, competitive service offerings and lack of market acceptance, as well as the other potential factors described under "Risk Factors" in the Company's public reports filed with the Securities and Exchange Commission, including the Company's Annual Report on Form 10-K for the fiscal year ended January 31, 2009. The Company cautions you not to place undue reliance on forward-looking statements, which reflect an analysis only and speak only as of the date hereof. TiVo disclaims any obligation to update these forward-looking statements.


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## VDP07

Stock update: TIVO + $5.44, DISH -$.79


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## Curtis52

"ENGLEWOOD, Colo., March 4 /PRNewswire-FirstCall/ -- DISH Network L.L.C., a subsidiary of DISH Network Corporation (NasdaqISH - News), and EchoStar Technologies L.L.C., a subsidiary of EchoStar Corporation (Nasdaq:SATS - News), issued the following statement regarding recent developments in TiVo vs. EchoStar Communications Corporation:

"We are disappointed in the Federal Circuit's split decision, but are pleased that Judge Rader agreed with our position. Therefore, we will be seeking en banc review by the full Federal Circuit. We also will be proposing a new design-around to the district court for approval. At this time, our DVR customers are not impacted." "


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## rocatman

En banc review is almost guarateed because of the dissenting opinion which is full of reasonable, logical arguments that can not just be ignored. Don't see Dish being force having to turn off DVR functions before this en banc review.


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## lokigray

So, how long will it be before my 625 loses its dvr functionality ?

Ideas ?

I assume a licensing fee will be in the works, but this a _permanent_ injunction .

How long ?
?


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## phrelin

Never fear, Charlie will keep this in court as long as he can, beginning with seeking en banc review.


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## Curtis0620

As long as they can get another stay.


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## dgordo

My numbers are a few years old, but the chances of an en banc review request being granted is about 1 in 100.


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## rtmoore4

rocatman said:


> En banc review is almost guarateed because of the dissenting opinion which is full of reasonable, logical arguments that can not just be ignored. Don't see Dish being force having to turn off DVR functions before this en banc review.


That's funny. Rader's arguments sound like they come from a 1st year law clerk, often merely making a statement without even providing supported opinion. Expect en banc to be denied. Charlie's goose is finally good and truly cooked.


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## rocatman

rtmoore4 said:


> That's funny. Rader's arguments sound like they come from a 1st year law clerk, often merely making a statement without even providing supported opinion. Expect en banc to be denied. Charlie's goose is finally good and truly cooked.


And the majority opinion was any different?


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## jacmyoung

Judge Rader’s dissenting opinion is full of specific details and point by point analyses, the majority opinion on the other hand is hollow affirmation. I am glad Charlie will seek en banc.

On the other hand, the question does not seem resolved how Judge Folsom will proceed from this point. Is the amended injunction reinstated? The majority did not vacate it, nor did it reinstate it. There is no reference as when the amended injunction should become effective since it is currently stayed.

Seems to me the parties will be back before Judge Folsom to argue whether the newly proposed designs should be approved or not under the “inform and approval” provision while the injunction continues to be stayed? Correct me if I am wrong.


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## dfd

dgordo said:


> My numbers are a few years old, but the chances of an en banc review request being granted is about 1 in 100.


Do you think those numbers are for all requests or for requests when there was a split decision?

Next question, the usual one in this case, how long to filing/ruling on this?

Thanks.


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## Maverickjoe

jacmyoung said:


> Judge Rader's dissenting opinion is full of specific details and point by point analyses, the majority opinion on the other hand is hollow affirmation. I am glad Charlie will seek en banc.


You got to take off the rosy glasses jack. Like any gambler, Charlie knows when to held 'em and when to fold 'em. He played his last good card and everybody knows it. If he doesn't get his people talking to their people soon, he runs the risk that TiVo will happily accept no royalites from Dish and just put him out of business.



jacmyoung said:


> On the other hand, the question does not seem resolved how Judge Folsom will proceed from this point. Is the amended injunction reinstated? The majority did not vacate it, nor did it reinstate it. There is no reference as when the amended injunction should become effective since it is currently stayed.


Just like last time we were here, the stay of the injunction will be lifted when the appellate order is mandated. That could be a month if en banc is rejected or longer if not. 2 out of a 100 cases get heard en banc - this won't be one of them - and 1 in a 1000 cases get overturned en banc.


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## harsh

lokigray said:


> So, how long will it be before my 625 loses its dvr functionality ?


Probably about the same time that DISH Network turns off MPEG2 altogether.


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## jacmyoung

Maverickjoe said:


> You got to take off the rosy glasses jack...


I don't need any glasses, I just need Charlie's stubbornness to continue with our entertainment.


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## dgordo

dfd said:


> Do you think those numbers are for all requests or for requests when there was a split decision?


The analysis we did in 2005 showed that 1 in 100 requests are granted regardless of dissenting opinion. Our analysis showed that a dissenting opinion didn't change the numbers.



dfd said:


> Next question, the usual one in this case, how long to filing/ruling on this?
> 
> Thanks.


1-3 months


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## jacmyoung

I must admit that Charlie’s lawyers completely blew it when they did not make a clear point of the PID filter not temporarily storing any data in order for the “source object” to later “extract” such temporarily stored data.

While the “audio and video data” argument came in late, it did get Judge Rader’s attention, but the majority was not persuaded. Therefore at this point I say Charlie’s lawyers screwed it up. Of course in the end it did not matter, the majority simply through up their hands and totally relied on Judge Folsom without any of their own “de novo review”, except Judge Rader of course, who actually followed the “de novo review” rule.


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## peak_reception

Oh My! Is the end in sight now? A split decision, wow. I wonder what other trick(s) Charlie can pull out of his... sleeve.


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## jacmyoung

Can you call this a split decision? I think it is rather a full affirmation by the majority, although with the dissenting judge fully on the side of the losing party. As clear cut as they can be on both sides.


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## Stuart Sweet

Curtis52 said:


> "CONCLUSION
> We have considered the EchoStar's remaining arguments and do not find them persuasive. Accordingly, the judgment of the district court is
> AFFIRMED "


I am only a spectator here but that language does not sound like a split decision to me.


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## Lake Lover

Charles Ergen, in his typical shoot-from-the-hip response which has characterized his actions RE this case, has already indicated that Dish Networks / EchoStar will appeal, to the full bench. In my opinion, he is a man driven by his ego, and his shareholders should really get on his back and tell him to bargain in good faith with TiVo. This could wind up costing DISH half a billion dollars. It AIN'T all Charlie's money. He has a responsibility first and foremost to the shareholders.


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## SayWhat?

I still have no idea at all what this is about and every time somebody tries to ask, the thread gets closed.


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## Lake Lover

phrelin -- Thanks for the link! I am not very technical.

TiVo was a super speculation and a great trading stock. I had traded it dozens of times over the past six years, but now I have just sold out completely.


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## bobukcat

Maverickjoe said:


> You got to take off the rosy glasses jack. Like any gambler, Charlie knows when to held 'em and when to fold 'em. He played his last good card and everybody knows it. If he doesn't get his people talking to their people soon, he runs the risk that TiVo will happily accept no royalites from Dish and just put him out of business.


I certainly didn't follow every page of this thread but several people have said this same thing with just about every decision against him and yet it's still going on years later.....

I'm sure that E* was prepared for this outcome and have their next steps laid out with possible next steps for each of those - if they don't they all really should be fired for misrepresenting shareholders.


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## dreadlk

bobukcat said:


> I certainly didn't follow every page of this thread but several people have said this same thing with just about every decision against him and yet it's still going on years later.....
> 
> I'm sure that E* was prepared for this outcome and have their next steps laid out with possible next steps for each of those - if they don't they all really should be fired for misrepresenting shareholders.


One thing I have learned is that Charlie like Shyite always floats to the surface:lol:

I agree, he's going to pull some magic out his ass and probably get another extension. All the suckers buying up that Tivo stock will most likely be selling it at a loss in a weeks time.


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## Curtis0620

I wonder how many subs Charlie will lose with a DVR?


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## Curtis0620

DISH better negotiate a deal before DIRECTV signs an exclusive deal.


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## Lake Lover

jacmyoung said:


> I don't need any glasses, I just need Charlie's stubbornness to continue with our entertainment.


 It has been entertaining! Following the prior thread, has been better than tuning to Letterman and Leno. We can only hope for as much fun running thru this thread.


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## jacmyoung

Lake Lover said:


> It has been entertaining! Following the prior thread, has been better than tuning to Letterman and Leno. We can only hope for as much fun running thru this thread.


I will do my part too


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## jacmyoung

bobukcat said:


> I certainly didn't follow every page of this thread but several people have said this same thing with just about every decision against him and yet it's still going on years later.....
> 
> I'm sure that E* was prepared for this outcome and have their next steps laid out with possible next steps for each of those - if they don't they all really should be fired for misrepresenting shareholders.


But they will have to get the next step in place, i.e. the en banc review. They can't expect any good outcome out of Judge Folsom. At the appeals court at least you have one out three judges completely agrees with E*. E* needs the majority of the circuit judges to agree with Judge Rader, which will be a tall order.


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## Kheldar

jacmyoung said:


> I will do my part too


Providing the comic relief? :grin:


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## peak_reception

Stuart Sweet said:


> I am only a spectator here but that language does not sound like a split decision to me.


 Two judges sided in full with TiVo, one jusge sided in full with DISH; *a 2 to 1 split*, as opposed to 3 to 0, i.e. unanimous.


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## stepheneasley

As an IP litigator, I can confirm that this was a split decision, with two members of the appellate panel affirming the lower court's contempt finding and one Judge dissenting from the affirmation. The unusually long, detailed, and well-reasoned dissent, and court's reluctance in general to finding a party in contempt, particularly when an effort was made to comply (the design-around), should give Dish some hope. Nevertheless, an en banc proceeding (all the judges in a Circuit reconsidering an appeal) is quite rare, and successful petitions for cert (requests that the Supreme Court get involved) are even rarer. This situation cries out for a settlement.


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## Draconis

peak_reception said:


> Two judges sided in full with TiVo, one jusge sided in full with DISH; *a 2 to 1 split*, as opposed to 3 to 0, i.e. unanimous.


True, but the one judge who sided with Dish did so on a technicality, to me it sounds like he thinks there is NOT enough red tape in this.

http://www.betanews.com/article/Appeals-court-rules-redesigned-EchoStar-box-still-infringes-on-TiVos-DVR/1267725110



> Judge Rader didn't see how EchoStar changing its product to fulfill the same function as a TiVo, but in a different way, constituted contempt of a court order in favor of the way TiVo performed the function originally.
> 
> "In its redesign efforts, EchoStar eliminated its video frame start-code detection in its entirety," the dissenting judge wrote. "Rather than parsing through all the video and audio data before storing onto the system, the modified design, upon request from the user, statistically estimates where a given frame might appear long after storage of the video and audio data. This change was a critical component of a vast redesign effort by fifteen engineers working full time for over 800 total hours. Before proceeding, EchoStar got two separate approvals of this change from an independent law firm."
> 
> Judge Rader believes TiVo should not have been able to resurrect an old argument about what infringed what -- which TiVo itself rejected prior to EchoStar's software overhaul -- to apply to new software that wasn't the subject of the original claim. In his closing, he wrote, "If Tivo believes that Echostar's new design still infringes its patent, it should file a new infringement suit, not attempt to short circuit a full proceeding. In its current form, this decision discourages good faith efforts to design around an infringement verdict."


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## Shades228

Curtis0620 said:


> DISH better negotiate a deal before DIRECTV signs an exclusive deal.


Tivo won't do an exclusive with DirecTV. They're already in talks with Comcast about their new interface. TiVo banked on one provider carrying them and look how well that turned out for them.


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## Maverickjoe

Waiter! Check please! Let's check the tab...

Final judgement with interest...................$105,000,000 (already paid)

Amended final judgment plus interest:.... ..$103,086,836
First Sanction period:.............................$200,000,000
Attorneys fees & costs on Sanction...........$ 5,800,000
pre-Judgment interest on stay damages.....$ 10,627,760
Additional Supplemental damages..............$ 13,362,808
Sanction period Damages from 7/09-3/10...$112,072,893
sub-Total............................................$444,950,297

Plus interest from 4/18/2008 (First Stay)..$ 20,000,000 est
TOTAL...............................................$464,950,297 due and payable

PS. Had TiVo been earning this instead of accruing it the hard way, the company would have been generating an increasing profit stream now well over $1/share/year. With more license deals to follow the scary big one that Charlie is going to have to sign...or else...little old TiVo is a very underappreciated asset.


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## jacmyoung

stepheneasley said:


> As an IP litigator, I can confirm that this was a split decision, with two members of the appellate panel affirming the lower court's contempt finding and one Judge dissenting from the affirmation. The unusually long, detailed, and well-reasoned dissent, and court's reluctance in general to finding a party in contempt, particularly when an effort was made to comply (the design-around), should give Dish some hope. Nevertheless, an en banc proceeding (all the judges in a Circuit reconsidering an appeal) is quite rare, and successful petitions for cert (requests that the Supreme Court get involved) are even rarer. This situation cries out for a settlement.


I agree, I think Judge Rader is screaming for Charlie to push ahead. The question is, is Charlie up to that task? Because as you said there is the easy way out.


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## James Long

DISH is still a long way from the pay or else stage. Another year or two?


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## Curtis0620

James Long said:


> DISH is still a long way from the pay or else stage. Another year or two?


This is at the end, no en Banc, and this is over.


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## dfd

Curtis0620 said:


> This is at the end, no en Banc, and this is over.


SCOTUS?


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## Herdfan

dfd said:


> SCOTUS?


Already been denied once.


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## dfd

Herdfan said:


> Already been denied once.


On the original case, yes. Can they go there on the contempt hearing?


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## James Long

dfd said:


> On the original case, yes. Can they go there on the contempt hearing?


I don't see why not. They may not get heard, but they can try.
It was only when the original case got to the SCOTUS level that Tivo got their first payment.


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## bobukcat

Can they counter-sue and ask that the new design gets a full jury trial? Every time I read these thought two things happen:

1) I get a headache and 2) I can't believe the new design isn't more than colorably different. I think there is no doubt that using the term "analyzing" the same as parsing and then applying that to the PID filter was a serious misrepresentation of what the term Parse meant in Tivo's design and patent documents. I also think the dissenting opinion elaborated on this in a way that the summary judgment did not address.

Of course I'm far from a lawyer or expert in such matters so it's all just opinion.


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## Michael P

In hindsight, wouldn't it have been better for E* to buy out TiVO, and make it another division like Sling Media?


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## riffjim4069

Maverickjoe said:


> Waiter! Check please! Let's check the tab...
> 
> Final judgement with interest...................$105,000,000 (already paid)
> 
> Amended final judgment plus interest:.... ..$103,086,836
> First Sanction period:.............................$200,000,000
> Attorneys fees & costs on Sanction...........$ 5,800,000
> pre-Judgment interest on stay damages.....$ 10,627,760
> Additional Supplemental damages..............$ 13,362,808
> Sanction period Damages from 7/09-3/10...$112,072,893
> sub-Total............................................$444,950,297
> 
> Plus interest from 4/18/2008 (First Stay)..$ 20,000,000 est
> TOTAL...............................................$464,950,297 due and payable
> 
> PS. Had TiVo been earning this instead of accruing it the hard way, the company would have been generating an increasing profit stream now well over $1/share/year. With more license deals to follow the scary big one that Charlie is going to have to sign...or else...little old TiVo is a very underappreciated asset.


Excellent post! Charlie's "stubbornness" is costing EchoStar hundreds-of-millions...and it will continue to cost them hundreds of millions since Tivo is clearly in the drivers seat. E* should have settled this cast years ago.


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## riffjim4069

Curtis0620 said:


> This is at the end, no en Banc, and this is over.


Agreed...this case is all but over. Charlie needs to sign a licensing agreement, ASAP, and get his team ready to battle VOOM.


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## Shades228

Michael P said:


> In hindsight, wouldn't it have been better for E* to buy out TiVO, and make it another division like Sling Media?


Poison pill for a buyout would have made it more costly.

I'm guessing they could have replaced all the infringing receivers for less cost, but the point was not money it was Charlie beating someone in court. It would have been much cheaper to settle at the beginning than it was for this whole process.


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## jacmyoung

bobukcat said:


> Can they counter-sue and ask that the new design gets a full jury trial? ...


They already did, the case is stayed pending the outcome of this appeal, that is if Charlie goes through with the en banc request.


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## jacmyoung

Shades228 said:


> ... It would have been much cheaper to settle at the beginning than it was for this whole process.


Not necessarily, DirecTV "settled" with TiVo and paid millions and millions fees, they also had to manufacture all those DirecTiVo DVRs at their own cost.


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## dgordo

jacmyoung said:


> Not necessarily, DirecTV "settled" with TiVo and paid millions and millions fees, they also had to manufacture all those DirecTiVo DVRs at their own cost.


Assuming that 500 or so million number ends up being correct, that has to be more than what directv has paid tivo.


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## dgordo

James Long said:


> I don't see why not. They may not get heard, but they can try.
> It was only when the original case got to the SCOTUS level that Tivo got their first payment.


The chances of the denial of an en banc hearing being taken by the SCOTUS is about 1 in 1000. I'd guess this phase ends at the en banc level with either dish winning en banc or the appeal being denied.


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## Shades228

jacmyoung said:


> Not necessarily, DirecTV "settled" with TiVo and paid millions and millions fees, they also had to manufacture all those DirecTiVo DVRs at their own cost.


If by settle you mean they signed a license agreement and DirecTV paid the sub fee of that agreement then yes. The difference is DirecTV paid TiVo for the subs that actually used a TiVo. Dish is just paying them for people using a DVR. TiVo helped sell DirecTV DVR's and I'm sure that the "millions" paid were offset by the billions made. So not even close to the same thing.


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## HobbyTalk

dgordo said:


> Assuming that 500 or so million number ends up being correct, that has to be more than what directv has paid tivo.


Not sure. Say there are 5 million DVRs in use and they had a $2/month license fee. That would be $10M per month or $120 per year. Times that by... what is it.... 7 years....

You can change the numbers a bit higher or lower, but I would guess that $500M would be equal to or less then licensing fees would have been over the years.


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## jacmyoung

Shades228 said:


> ...I'm sure that the "millions" paid were offset by the billions made. So not even close to the same thing.


If so, the $103M E* paid TiVo also got billions made for E* too. But as dgordo said, if E* loses on the en banc review, they will almost certainly be paying much more than $103M.

The only thing that will drive Charlie at this point seems to be, if he settles now, he will forever be the loser. There is nothing else in his favor that can drive him for further review. His attorneys had proven that they had screwed it up for him on many infringement issues, while on appeal the new lawyer managed to cure some of the deficiencies, only one out of the three appeals judges even cared to look at them. There is no guarantee that the en banc panel will do differently.

Okay, like the other poster said, maybe there is some hope, because Judge Rader went out of his way to issue a long and detailed dissenting opinion that touched on almost all points E* made, without even the slightest concession made to the majority. Maybe this fact alone will drive Charlie further.


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## Lord Vader

James Long said:


> I don't see why not. They may not get heard, but they can try.
> It was only when the original case got to the SCOTUS level that Tivo got their first payment.


SCOTUS won't get involved until a decision on the en banc request is rendered, and if an en banc request is denied, the odds are even less likely that SCOTUS would grant cert.


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## dgordo

HobbyTalk said:


> Not sure. Say there are 5 million DVRs in use and they had a $2/month license fee. That would be $10M per month or $120 per year. Times that by... what is it.... 7 years....
> 
> You can change the numbers a bit higher or lower, but I would guess that $500M would be equal to or less then licensing fees would have been over the years.


I thought directv was paying $1.25 per sub? And even if it is more, its only in the last few years that the dvr customer has been near 5 million.


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## cartrivision

jacmyoung said:


> Not necessarily, DirecTV "settled" with TiVo and paid millions and millions fees, they also had to manufacture all those DirecTiVo DVRs at their own cost.


That last half of that sentence makes no sense whatsoever.

The only way that Tivo will ever pick up the cost of manufacturing the hardware is if they get to sell their regular $13 per month per box subscriptions. The monthly "subscription" for the DirecTV Tivo boxes was $6 (per account, not per box), and Tivo only got a fraction of that, so of course they weren't paying for the manufacture of the hardware.

That's what made DirecTV Tivo service so great. You could have a house full of Tivo DVRs for an additional $6 per month as opposed to perhaps $50 or more a month in individual Tivo box subscriptions.


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## jacmyoung

cartrivision said:


> That last half of that sentence makes no sense whatsoever.
> 
> The only way that Tivo will ever pick up the cost of manufacturing the hardware is if they get to sell their regular $13 per month per box subscriptions. The monthly "subscription" for the DirecTV Tivo boxes was $6 (per account, not per box), and Tivo only got a fraction of that, so of course they weren't paying for the manufacture of the hardware.
> 
> That's what made DirecTV Tivo service so great. You could have a house full of Tivo DVRs for an additional $6 per month as opposed to perhaps $50 or more a month in individual Tivo box subscriptions.


You just proved my point, the cost of the "settlement" for DirecTV is not just the monthly fees paid to TiVo, but the cost of manufacturing another line of hardware DirecTV folks out. The fees DirecTV paid TiVo so far has been close to the $103M E* paid TiVo, therefore it is hard to say which has been more costly.

But if E* loses on the en banc review, it will be a lot different.


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## phrelin

Well, so far the new thread has attracted 7 posts an hour....


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## cartrivision

HobbyTalk said:


> Not sure. Say there are 5 million DVRs in use and they had a $2/month license fee. That would be $10M per month or $120 per year. Times that by... what is it.... 7 years....
> 
> You can change the numbers a bit higher or lower, but I would guess that $500M would be equal to or less then licensing fees would have been over the years.


DirecTV didn't pay per box, they paid per household. Then there's the fact that the $2 per month that DirecTv was paying Tivo was for households that had DirecTV Tivo boxes, so your assumed numbers are WAY too high.

Tivo now has less than 3 million subscribers, and their peak they had about 4.4 million subscribers (with about 2 million of those being DirecTV Tivo subscribers). There was nowhere near that number of DirecTV Tivo subscribers in the early years (or now), so a saying that they averaged about one million DirecTV-Tivo subscribers over the past ten years would probably be way to generous. That means that on average, DirecTV has paid Tivo less than $2 million per month over the past ten years for those DirecTV Tivo customers, and it's probably significantly less per month per subscriber in licensing fees for customers who use DirecTV DVRs rather than Tivo DVRs.

When you add up all of the legal fees that DISH has spent fighting this to the more than half a billion in judgements against them that they are going to have to pay, that has got to be far more than what DirecTV has paid Tivo over the past ten years.


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## Herdfan

jacmyoung said:


> You just proved my point, the cost of the "settlement" for DirecTV is not just the monthly fees paid to TiVo, but the cost of manufacturing another line of hardware DirecTV folks out.


 Huh?

DirecTv had to manufacture the DVR's no matter whose software was in them. Same as E*. The paid TiVo a license Fee of around $0.90 for the original agreement and the $1.25 for a renewal. But that is only for TiVo based household, of which there are probably very few now.

I would say the $100M figure over 10 years is about right. But the fact they could market the TiVo name as part of their DVR at a time when TiVo was the big name in DVR's was worth more than they had to pay. DirecTiVo vs. Dishplayer - not a contest.

Plus, at the time, D* did not manufacture anything. All the DirecTiVo's were marketed by 3rd parties such as Samsung (made the best ones) and Hughes. It wasn't until the R10 that the DirecTV name was added. Even the DirecTV branded HR10-250 was built by contract manufacture Solectron.

The bottom line is the DirecTV-TiVo deal was great for both sides. DirecTV had the most recognized DVR name associated with their brand and had a rock-solid product to boot. TiVo got some cash flow that it would not have had.

So D* has paid $100M, had great DVR software and has immunity from lawsuits by TiVo. E* has paid or will pay $500M, plus how many 10's of millions more in legal fees and has exactly nothing to show for it. Wonder who got the best deal? :eek2:


----------



## cartrivision

jacmyoung said:


> You just proved my point, the cost of the "settlement" for DirecTV is not just the monthly fees paid to TiVo, but the cost of manufacturing another line of hardware DirecTV folks out. The fees DirecTV paid TiVo so far has been close to the $103M E* paid TiVo, therefore it is hard to say which has been more costly.
> 
> But if E* loses on the en banc review, it will be a lot different.


No, the point that you are clearly missing is that DirecTV would also be picking up the costs for the hardware without a licensing agreement with Tivo (just like DISH is doing now, and just like DirecTV is doing now for their own non-Tivo DVRs), so there was no extra cost for DirecTV there.

Your argument is completely illogical.

As an added bonus, DirecTV's agreement with Tivo saved each of their customers hundreds of dollars per year in Tivo subscription fees that they didn't have to pay.


----------



## Lincoln6Echo

Excuse my legalese ignorance, but what the hell is an "en banc"? I've never heard this term before. And I follow plenty of lawyer opinions in the news media and I have never heard of this phrase before.

And again, what's the deal with TiVo? Are they trying to pull a Steve Jobs here? Trying to monoploize their "tech" that everybody else in the world has already cloned?


----------



## Lord Vader

"En banc" is a term that has been around for a while and means the full court rather than a portion of the court, that being 3, will hear the case. It's a request that the entire appellate court hear the case as one unit--en banc--and not just a small part of the court.


----------



## Sterling

jacmyoung said:


> Correct me if I am wrong.


Jac,

Any chance your keeping track how many times you have been wrong about this case ?

Really, for all your intensity of this subject, you sure end up on the wrong side far too often.

LOL !


----------



## jacmyoung

Sterling said:


> Jac,
> 
> Any chance your keeping track how many times you have been wrong about this case ?
> 
> Really, for all your intensity of this subject, you sure end up on the wrong side far too often.
> 
> LOL !


True, but having a well respected circuit judge, a candidate for the Chief Judge post, completely agree with me point by point, even more so then he agreed with E*, is priceless


----------



## Lake Lover

Interesting enough, I think that because of the large amount of money involved, and because of the force of Judge Rader's dissenting opinion, the judges may vote to grant the appeal to the full bench.

I hope not. The shareholders have paid enough money to the lawyers and it is time to settle and get back to business. For many months, we have noted Ergen's supposed reluctance to settle and to doggedly fight on. But, this time Tom Rogers of TiVo, may be he who will be less anxious to settle, since the potential for an enormous score for his company looks very sweet and extremely likely, and likely to increase if the appeals drone on, and TiVo continues to prevail. Why take half a loaf, when you can get it all?


----------



## Sterling

jacmyoung said:


> True, but having a well respected circuit judge, a candidate for the Chief Judge post, completely agree with me point by point, even more so then he agreed with E*, is priceless


Not so sure about priceless....

You have provided valuable insight how to invest.

Today was a good day.

Thank you.


----------



## HobbyTalk

cartrivision said:


> DirecTV didn't pay per box, they paid per household. Then there's the fact that the $2 per month that DirecTv was paying Tivo was for households that had DirecTV Tivo boxes, so your assumed numbers are WAY too high.


Every DVR that Dish has would have to pay the licensing fee since each and every STB uses TiVo code. There would be no option for a TiVo DVR and a Dish DVR.


----------



## Kheldar

HobbyTalk said:


> Every DVR that Dish has would have to pay the licensing fee since each and every STB uses TiVo code. There would be no option for a TiVo DVR and a Dish DVR.


You mean like there won't be an option for a DirecTV DVR and a TiVo DVR on DirecTV? Yes, DirecTV licenses their DVR technology from TiVo, but the TiVo brand is no longer on them, except for the new one coming out this year. They will coexist on DirecTV, why not DishNet?


----------



## HobbyTalk

Kheldar said:


> You mean like there won't be an option for a DirecTV DVR and a TiVo DVR on DirecTV? Yes, DirecTV licenses their DVR technology from TiVo, but the TiVo brand is no longer on them, except for the new one coming out this year. They will coexist on DirecTV, why not DishNet?


Who's talking about D* DVR? We are talking about license fees that E* would pay and since each DVR that E* has produced (except for a very small number) uses (or has used) the TiVo patent each one would need to to have a TiVo license. It isn't about what "could" have happened, presently every current E* DVR has used the TiVo code.


----------



## Kheldar

HobbyTalk said:


> Who's talking about D* DVR? We are talking about license fees that E* would pay and since each DVR that E* has produced (except for a very small number) uses (or has used) the TiVo patent each one would need to to have a TiVo license.


I know, but that doesn't mean DishNet won't market some of them without the TiVo logo.


----------



## jacmyoung

Kheldar said:


> You mean like there won't be an option for a DirecTV DVR and a TiVo DVR on DirecTV? Yes, DirecTV licenses their DVR technology from TiVo, but the TiVo brand is no longer on them, except for the new one coming out this year. They will coexist on DirecTV, why not DishNet?


Because the jury said that DISH's old DVRs infringed, DISH had to pay damages for all of them, it could not be a situation that two types of DVRs coexisted, some paid a fee, others not.

If you apply the same thing to DirecTV, DirecTV would have paid a lot more to TiVo than the $103M E* had paid TiVo.


----------



## HobbyTalk

Kheldar said:


> I know, but that doesn't mean DishNet won't market some of them without the TiVo logo.


And that does not make one bit of difference. If it uses TiVo's code there would have to be a license fee paid.


----------



## jacmyoung

HobbyTalk said:


> ...presently every current E* DVR has used the TiVo code.


Only the 6 million named DVRs, not any newer models, but still had E* settled with TiVo a long time ago after the 2006 trial, the deal would likely have covered all of their DVRs, TiVo would not have agreed to anything less, this is unlike the DirecTV deal.


----------



## jacmyoung

Lake Lover said:


> Interesting enough, I think that *because of the large amount of money involved*, and because of the force of Judge Rader's dissenting opinion, the judges may vote to grant the appeal to the full bench...


You just gave Charlie one more reason to appeal. I still think if he follows through with the appeal, it would be Judge Rader's opinion the driving force.


----------



## Chihuahua

Depending on what the final outcome may be as far as this case is concerned, as well as the potential ramifications for the future of Dish Network/Echostar, could the company become vulnerable to a possible hostile takeover attempt?


----------



## dgordo

Chihuahua said:


> Depending on what the final outcome may be as far as this case is concerned, as well as the potential ramifications for the future of Dish Network/Echostar, could the company become vulnerable to a possible hostile takeover attempt?


The way the stock is structured it would be impossible for anyone to gain a majority share without Charlie's consent.


----------



## dgordo

jacmyoung said:


> You just gave Charlie one more reason to appeal. I still think if he follows through with the appeal, it would be Judge Rader's opinion the driving force.


I'm guessing, based upon what we know of him, that Charlie would appeal all the way to the SCOTUS even if the CAFC decision were unanimous.


----------



## Shades228

jacmyoung said:


> Because the jury said that DISH's old DVRs infringed, DISH had to pay damages for all of them, it could not be a situation that two types of DVRs coexisted, some paid a fee, others not.
> 
> If you apply the same thing to DirecTV, DirecTV would have paid a lot more to TiVo than the $103M E* had paid TiVo.


So Dish loses and now you're trying to justify the cost? I'm really confused why you keep bringing DirecTV up.

TiVo couldn't touch DirecTV because DirecTV owns ReplayTV's IP. ReplayTV and TiVo tried to go at it in court and it became so convoluted that they realised they both infringed other IP of the other company so they both dropped the lawsuit.

So DirecTV would have paid $0. DirecTV understood the benefit of having the TiVo brand name at the time. Later on they chose to make their own due to TiVo not doing enough things specifically for them.

Edit: I did indeed have the date incorrect I thought they purchased replay IP prior to the R15 launch and I was incorrect. I have left the original post as is. As Harsh pointed out in post #93 the agreement preceeded the buyout which is what keeps them from suing.

So why don't you let the DirecTV part go and get back to TiVo winning the appeal and praying that the appelate court will hear it in full. If not then you can say how you were right the whole time about a lawsuit you didn't represent nor did it win.


----------



## inkahauts

Really, I will believe this is over when the Supreme court gets its hands on this case and decides it in final.... 

I think the affirming judges basically say, Echo was found infringing, told what they had to do, and didn't do it, but rather decided that they could make stuff up as they go to fix the situation, both in the software, and the way they handled the case, so the judge smacked em upside the head, and Echo spit in his face again, so he B* slapped um again.. and that its ok to do that, based on other precedents of past IP cases....

The Desenting judge said no to all that, because he thinks that echo wasn't given a fiar opportunity to make their units non infringing on a couple infringing things, and then got real confused with the order in the way it disabled software for current customers but ended sales of hardware... Something that makes total sense from a logic standpoint...

And while I can;t say I fully know all the details about the cases either side quoted, etc, I can say that since that was the one argument that was completely illogical, I have to think the desenting judge was amiss in more than one place since his arguments seemed to focus on the same ideals....

Heres what I am sure of, Charlie is still flipping off the courts tonight, and has no intention of ever turning off any dvr service to any customers...


----------



## jacmyoung

Shades228 said:


> So Dish loses and now you're trying to justify the cost? I'm really confused why you keep bringing DirecTV up.
> 
> TiVo couldn't touch DirecTV because DirecTV owns ReplayTV's IP. ReplayTV and TiVo tried to go at it in court and it became so convoluted that they realised they both infringed other IP of the other company so they both dropped the lawsuit.
> 
> So DirecTV would have paid $0. DirecTV understood the benefit of having the TiVo brand name at the time. Later on they chose to make their own due to TiVo not doing enough things specifically for them.
> 
> So why don't you let the DirecTV part go and get back to TiVo winning the appeal and praying that the appelate court will hear it in full. If not then you can say how you were right the whole time about a lawsuit you didn't represent nor did it win.


Your above statement would have made perfect sense had you not totally missed the timeline. When DirecTV signed the deal with TiVo, they did not have nor did they know they could have bought the ReplayTV IP in a fire sale later. Once DirecTV bought ReplayTV however was when DirecTV began to drop DirecTiVo boxes and replace them with their own DVRs.

Bringing DirecTV in makes a lot of sense because there is a clear difference in how the two DBS companies handle the TiVo IP issue. I don't pray for Charlie at all, he has all the money to play his game. My interest is to understand how the court system works, how the law should be applied.

The fact that I made most of the legal arguments on my own back in 2008, before E* even filed their briefs, in fact E* even missed a few arguments I made, and now Judge Rader confirms pretty much all my arguments in his opinion, is comforting to know. Since I have no money in this game to lose, such confirmation is good enough.

The TiVo folks here rarely made their own arguments, only read what TiVo said, what Judge Folsom said, then agreed with them, the fact the courts so far have agreed with what the TiVo folks had agreed what the court has said, is comforting to the TiVo folks here of course, but it was never your own ideas that any one of the judges had ever affirmed.


----------



## SayWhat?

So, nobody knows what this is all about? A lot of speculating and posturing, but nobody is answering the question.

WHAT IS THE VIOLATION?


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## Curtis52

SayWhat? said:


> So, nobody knows what this is all about? A lot of speculating and posturing, but nobody is answering the question.
> 
> WHAT IS THE VIOLATION?


Judge Folsom: "this Court finds EchoStar in contempt of its permanent injunction. EchoStar's modified software is not more than colorably different from the products adjudged to infringe; furthermore, EchoStar's products continue to infringe TiVo's patent. Finally, EchoStar failed to comply this Court's order that it disable the DVR functionality in the infringing products. "

http://www.dbstalk.com/showthread.php?t=159128


----------



## SayWhat?

So, you're saying you don't know what the violation is either then, right?


----------



## Lord Vader

There are many violations involved in this lawsuit, but the jist of this case can be summed up by saying that DISH was found to have violated TiVo's patents. In layman's terms, they stole TiVo's technology and used it without permission.


----------



## jacmyoung

Curtis52 said:


> Judge Folsom: "this Court finds EchoStar in contempt of its permanent injunction. *EchoStar's modified software is not more than colorably different from the products adjudged to infringe; furthermore, EchoStar's products continue to infringe TiVo's patent.* Finally, EchoStar failed to comply this Court's order that it disable the DVR functionality in the infringing products. "
> 
> http://www.dbstalk.com/showthread.php?t=159128


You know the above highlighted statement is not true, because you never disputed what I have put forth from the very beginning of our debate back in 2008, even before the 9/4/08 hearing:

The PID filter does not "parse" out any "audio and video data", therefore it does not "temporarily stores" any "said audio and video data", therefore there is no "source object" in the modified DVRs to "extract" the "audio and video data" from the PID filter, therefore there is no "source object" there to "convert" the "video data" into the "video stream", therefore there is no "source object" to "fill the buffer with such video stream"...

Neither you nor Greg had ever disputed my above statement, and yet I think both of you understand to prove infringement, all of the above highlighted terms must be found in the modified DVRs.

The problem is, E* never put forth the above full arguments in the first place, they only argued on the "parse" term, but at the end of the contempt proceeding they did add the "audio and video data" argument, it was too late, Judge Folsom did not even touch on it.

They did however put forth the above entire argument in their appeals brief, but it turned out the majority did what Judge Folsom did, simply brushed them off as being not persuasive, without ever explaining why. I think it is ok to say you are not persuaded, but it is not ok to not explain why.

At least one judge said he was going to address the arguments put forth by both parties, not simply brush them off. But then again E* must share the blame for not putting forth all the arguments in the first place. If you only use some arguments at the last minute, you give others excuse to brush them off, why didn't you say so in the first place if they were so obvious?


----------



## harsh

Shades228 said:


> TiVo couldn't touch DirecTV because DirecTV owns ReplayTV's IP.


Replay has nothing to do with it. TiVo can't sue DIRECTV because it is part of their contract with each other.


----------



## Lake Lover

Chihuahua said:


> Depending on what the final outcome may be as far as this case is concerned, as well as the potential ramifications for the future of Dish Network/Echostar, could the company become vulnerable to a possible hostile takeover attempt?


I would think that there are a lot of Dish and EchoStar shareholders who are gritting their teeth and shaking their heads this morning. In his younger days I could see Carl Ichan jumping in here and kicking ... for a change of DISH board of directors.

Carl-- where are you when we need you!


----------



## Maverickjoe

jacmyoung said:


> You know the above highlighted statement is not true, because you never disputed what I have put forth from the very beginning of our debate back in 2008


The highlighted statement from Judge Folsom is not only true no matter how many times you say or argue it's not, it's now the law (or it will be momentarily). Your convoluted interpretations of the independent claims have been wrong, as have your claim constructions. We know this because the lower court said so and the appellate court agreed. No matter how many more times you say it it will always be wrong, and now is probably a good time to stop. And don't look for a job in the IP business.



jacmyoung said:


> They did however put forth the above entire argument in their appeals brief, but it turned out the majority did what Judge Folsom did, simply brushed them off as being not persuasive, without ever explaining why.


The appelate court decision affirming Folsom's order was 26 pages long and very carefully described the decision and meticulously reasoned why it was the right one. That you don't like it is obvious, but it would help if you read it before suggesting it doesn't explain it's conclusions.

Whatever you think about the CAFC, or our entire justice system for that matter, these judges are very intelligent people doing a very difficult job. They don't deserve any of the abuse directed at them by forums like this regardless of whether you like or dislike their answers.


----------



## FTA Michael

Lord Vader said:


> There are many violations involved in this lawsuit, but the jist of this case can be summed up by saying that DISH was found to have violated TiVo's patents. In layman's terms, they stole TiVo's technology and used it without permission.


You don't have to steal technology to violate a patent. If you invent something that you've never seen or heard of, but then find that somebody three states away patented something very similar two weeks ago, then you can't even use your own invention without a royalty contract with that other guy. This is different from copyright, where if you can prove completely independent creation, then you don't violate the copyright.

OTOH, when the patent term expires in a few decades, then anyone can freely use that technology. Thanks to the world's lawmakers, copyrights can be extended almost infinitely.


----------



## FTA Michael

Excuse me if I missed this in the thread, but Sanford Bernstein analyst Craig Moffett says Dish might have to shut down 8 million DVRs. (Not likely!) Or pay a premium for the TiVo license on top of its damages. (My best guess.)

It's in this Multichannel News article: http://www.multichannel.com/article...o_Shut_Down_8M_DVRs_After_TiVo_Legal_Loss.php


----------



## bobukcat

jacmyoung said:


> The PID filter does not "parse" out any "audio and video data", therefore it does not "temporarily stores" any "said audio and video data", therefore there is no "source object" in the modified DVRs to "extract" the "audio and video data" from the PID filter, therefore there is no "source object" there to "convert" the "video data" into the "video stream", therefore there is no "source object" to "fill the buffer with such video stream"...
> 
> The problem is, E* never put forth the above full arguments in the first place, they only argued on the "parse" term, but at the end of the contempt proceeding they did add the "audio and video data" argument, it was too late, Judge Folsom did not even touch on it.
> 
> They did however put forth the above entire argument in their appeals brief, but it turned out the majority did what Judge Folsom did, simply brushed them off as being not persuasive, without ever explaining why. I think it is ok to say you are not persuaded, but it is not ok to not explain why.
> 
> At least one judge said he was going to address the arguments put forth by both parties, not simply brush them off. But then again E* must share the blame for not putting forth all the arguments in the first place. If you only use some arguments at the last minute, you give others excuse to brush them off, why didn't you say so in the first place if they were so obvious?


I'm gonna have to agree with you here and I really think the court did a disservice to justice in using the term "analyze" to mean the same as parses. Then when E* witnesses were asked does the PID filter analyze the data stream they had to say yes, even though it does not meet the same definition of parses that Tivo's patent lays out for parsing the video and audio streams.

As far as I can tell though E*'s lawyers hosed this up by: 1)Not appealing the injuction for being too broad in the first place (i.e. disable all accessing of the hard drive). It may have been possible for E* to put software on the box that allowed to VCR like functionality without trick-play, etc. and not infringe. That's just an example but both the majority and dissenting opinion seem to indicate E* should have appealed the injunction in full. 2)More aggressively objecting to using the term "analyze" to equate to "parses" in the first trial (they may have vehemently objected but just been over-ruled, I don't know) and also in the appeal of the verdict.

My problem with this on the grand scale is that if E* did indeed develop a way to make a DVR with the same hardware that does not infringe and they are still going to have to license or not even use that method because this was only decided in a contempt hearing - then justice has not been served, innovation has been squashed and the consumer will lose out in the long run. I suppose E* can develop a new line of receivers but it would be hard for them to pass the "more than colorably different" litmus test in Judge Folsom's eyes at this point.


----------



## Herdfan

jacmyoung said:


> Your above statement would have made perfect sense had *you not totally missed the timeline*. When DirecTV signed the deal with TiVo, they did not have nor did they know they could have bought the ReplayTV IP in a fire sale later. *Once DirecTV bought ReplayTV however was when DirecTV began to drop DirecTiVo boxes and replace them with their own DVRs*..


No, its *YOU WHO HAVE THE TIMELINE WRONG*! The DirecTV R-15, developed by DirecTV sister corporation NDS was release in the Spring of 2006.

DirecTV bought the assets of Replay TV in December 2007. That is a full year and a half AFTER DirecTV released its own non-TiVo based DVR.



harsh said:


> Replay has nothing to do with it. TiVo can't sue DIRECTV because it is part of their contract with each other.


Plus what Harsh said as well!

DirecTV has not one thing to do with this case other than to show an example of what should have have been done with regards to licensing.


----------



## Herdfan

Were the three judges that heard this case the same three judges that heard it last time?


----------



## Stuart Sweet

As a DIRECTV sub I must agree with post #99. It is the patent-sharing agreement in place with DIRECTV that keeps TiVo off their backs, not anything else.


----------



## Greg Bimson

bobukcat said:


> I'm gonna have to agree with you here and I really think the court did a disservice to justice in using the term "analyze" to mean the same as parses. Then when E* witnesses were asked does the PID filter analyze the data stream they had to say yes, even though it does not meet the same definition of parses that Tivo's patent lays out for parsing the video and audio streams.


Not quite...

No matter what Judge Rader said, it was DISH/SATS' witnesses that stated that PID filtering met the limitation in the claim. In other words, everyone agreed that PID filtering met "the same definition of parses that Tivo's patent lays out for parsing the video and audio streams".


----------



## jacmyoung

Lake Lover said:


> I would think that there are a lot of Dish and EchoStar shareholders who are gritting their teeth and shaking their heads this morning. In his younger days I could see Carl Ichan jumping in here and kicking ... for a change of DISH board of directors.
> 
> Carl-- where are you when we need you!


I don't think the facts support your theory, since DISH is still near its 52-week high


----------



## jacmyoung

Stuart Sweet said:


> As a DIRECTV sub I must agree with post #99. It is the patent-sharing agreement in place with DIRECTV that keeps TiVo off their backs, not anything else.


I agree with that too, however the agreement does not call for DirecTV to drop the current DirecTiVo subs, replace their TiVo DVRs with the DirecTV own brands, not in small numbers, but in massive replacement effort.

I don't think DirecTV would have done so if not for their smart move to grab ReplayTV on the cheap.


----------



## James Long

riffjim4069 said:


> Excellent post! Charlie's "stubbornness" is costing EchoStar hundreds-of-millions...


Not really. The extra charge for "stubbornness" is not hundreds of millions. Assuming that DISH pays that entire bill (eventually) the difference between paying now vs fighting to not pay is only a fraction of what they "owe".

Perhaps they could have worked out a cheaper deal than the costs shown ... but TiVo is stubborn too. How can one prove that this list of costs is more than TiVo would have settled for in a licensing deal?


----------



## jacmyoung

Herdfan said:


> No, its *YOU WHO HAVE THE TIMELINE WRONG*! The DirecTV R-15, developed by DirecTV sister corporation NDS was release in the Spring of 2006.
> 
> DirecTV bought the assets of Replay TV in December 2007. That is a full year and a half AFTER DirecTV released its own non-TiVo based DVR.


It had nothing to do with when DirecTV had their own DVRs, rather when DirecTV signed their agreement with TiVo, which was in 2006, after TiVo won the trial agaisnt E* I believe. DirecTV knew TiVo could go after their R-15 too.

But not any more, in part because of the agreement, but also in part because now, after they signed the agreement with TiVo, over a year later, they also had the wisdom to buy ReplayTV on the cheap. After that DirecTV had no fear at all, which might be why they began freely dropping their DirecTiVo accounts by the hundreds of thousands each quarter.


----------



## spl5800

Charlie and Dish have the money just launch a hostile takeover of Tivo watch how quickly a licensing deal gets done.


----------



## jacmyoung

bobukcat said:


> ...My problem with this on the grand scale is that if E* did indeed develop a way to make a DVR with the same hardware that does not infringe and they are still going to have to license ...


That cannot happen, at least cannot be forced on by law.


----------



## jacmyoung

spl5800 said:


> Charlie and Dish have the money just launch a hostile takeover of Tivo watch how quickly a licensing deal gets done.


The problem is, Charlie is also cheap when it comes to buying anything


----------



## SaltiDawg

jacmyoung said:


> The problem is, Charlie is also cheap when it comes to buying anything


----------



## Albie

jacmyoung said:


> The problem is, Charlie is also cheap when it comes to buying anything


There is a difference between cheap and what Charlie would have to pay Tom Rogers et al should they decide to exercise their "options" in the case of a hostile takeover.

As to the CAFC Opinion I have a question for the actual lawyers out there. Given I have not read a whole lot of Appeals decisions, but was Rader's dissent a lot more forceful and opinionated than most dissenting opinions from an CAFC Judgement.


----------



## bidger

jacmyoung said:


> It had nothing to do with when DirecTV had their own DVRs, rather when DirecTV signed their agreement with TiVo, which was in 2006, after TiVo won the trial agaisnt E* I believe.


Incorrect. The contract was extended the day before TiVo won it's patent case against Echostar.


----------



## jacmyoung

James Long said:


> Not really. The extra charge for "stubbornness" is not hundreds of millions. Assuming that DISH pays that entire bill (eventually) the difference between paying now vs fighting to not pay is only a fraction of what they "owe".
> 
> Perhaps they could have worked out a cheaper deal than the costs shown ... but TiVo is stubborn too. How can one prove that this list of costs is more than TiVo would have settled for in a licensing deal?


I will carry this point forward a bit.

Assume Charlie fails on the en banc review, assume the additional $230M will be deposited in TiVo's account. The next thing Charlie will likely do is to seek approval of the new design in front of Judge Folsom.

Of course TiVo will seek more money, and also argue that E* is still in violation for not disabling the DVRs, but E* can now argue that the new injunction does not require that E* must *first* disable the DVRs, *then* seek approval, E* can do either one of them.

At the meantime the approval process will take some time, and if Judge Folsom denies it, E* can then appeal again, only this time, TiVo cannot say E* violated the injunction, only that whether the new design still infringes or not.

Most of the anger over E* by the judges hinges on the fact E* did not inform, they in fact appealed to the contrary, giving the court impression that they would have to disable the DVRs, not able to design around it, when in fact at the same time they were implementing the design around without disabling the DVRs. That was something not above the board.


----------



## Maverickjoe

Originally Posted by bobukcat 
...My problem with this on the grand scale is that if E* did indeed develop a way to make a DVR with the same hardware that does not infringe and they are still going to have to license ...



jacmyoung said:


> That cannot happen, at least cannot be forced on by law.


You are literally correct but probably don't realize it. 

The law cannot force a company to get a license or give a license for a patent so long as the company who owns a patent is practicing it in the marketplace. A patent by definition is a right to its monopoly and therefore the right to exclude for a reaonable period of time. So if TiVo wants to they can tell Charlie (a) pay the bill, (b) shut off the DVRs (at least until the lengthy process by which the design-around is vetted by Folsom), and (c) you can't license our patent.:nono2:

What TiVo should do is tell Charlie now that the game is over, sign a license deal on our terms, or if you exercise your last hail mary with the en banc and the SCOTUS there will be no license.

By the way. you can be sure the process that TiVo and Folsom devise to vet the train of design-arounds will (a) be very expensive, (b) require extensive new discovery, code analysis, expert reports and opinions, (c) a series of hearings that will need to be calendared on the docket, and (d) a lengthy decision and memorandum from Folsom denying it. And rest assured that the CAFC will not accept any more requests to stay the injunctions.


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## Lord Vader

FTA Michael said:


> You don't have to steal technology to violate a patent. If you invent something that you've never seen or heard of, but then find that somebody three states away patented something very similar two weeks ago, then you can't even use your own invention without a royalty contract with that other guy. This is different from copyright, where if you can prove completely independent creation, then you don't violate the copyright.
> 
> OTOH, when the patent term expires in a few decades, then anyone can freely use that technology. Thanks to the world's lawmakers, copyrights can be extended almost infinitely.


Oh, I know one doesn't have to actually "steal" to be guilty of patent violations; I was simply trying to simplify the situation for the poster. However, remember that "steal" doesn't have to mean intent in legal situations. In your good example, the word "steal" could still be applied, even if it might be considered as unintentional or unknowing theft.


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## jacmyoung

bidger said:


> Incorrect. The contract was extended the day before TiVo won it's patent case against Echostar.


On that point, I'd like to point out an article I posted some time ago about the history of the E. TX patent cases. One of which happened in 2006, Forgent also sued E*, D* and Time Warner for DVR infringement. E*, D* and TW at the time worked together to defend themselves, but one month before the jury trial, TW settled with Forgent for $18M (?), and one day before the jury trial, D* settle with Forgent for $8M (?). Charlie alone went through the trial and got the jury to throw out Forgent's case.

At the time it was well agreed in the legal community that you simply could not win any patent infringement cases in that E. TX court. So the common advice was to settle when the patent owners file, or will file a case against you in that court. Charlie was one of the first to actually prove that you could win. It wasn't alway one sided.


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## jacmyoung

Maverickjoe said:


> ...The law cannot force a company to get a license or give a license for a patent so long as the company who owns a patent is practicing it in the marketplace...


No, you did not realize that the law cannot force a license on a product that does not infringe on the patent, since his premise was that the product does not infringe, therefore it cannot happen by force of law.


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## Maverickjoe

jacmyoung said:


> Of course TiVo will seek more money, and also argue that E* is still in violation for not disabling the DVRs, but E* can now argue that the new injunction does not require that E* must *first* disable the DVRs, *then* seek approval, E* can do either one of them.


Jac, you need to read more carefully before you distort the facts:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end-user or subscriber. The DVR functionality, storage to and playback from a hard disk drive, shall not be enabled in any new placements of the Infringing Products."



jacmyoung said:


> At the meantime the approval process will take some time, and if Judge Folsom denies it, E* can then appeal again, only this time, TiVo cannot say E* violated the injunction, only that whether the new design still infringes or not.


Within 30 days after the Appeals Court decision is mandated the DVR's will be shut down, or Dish will be paying exhorbitant sanctions. There is no chance of getting a design-around approved by Folson in the meantime, and when he finally decides to disapprove it, Dish cannot then download it and file an appeal seeking a stay of the order. At least the Appeals court will never grant a third stay for a company they themselves found in contempt.

Do you understand that's why the market nearly doubled the value of TiVo last night? And while Dish may be near it's 52-week high, it's well below where it was 10 years ago - it's been lost money for over a decade.


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## Herdfan

jacmyoung said:


> It had nothing to do with when DirecTV had their own DVRs, rather when DirecTV signed their agreement with TiVo, which was in 2006, after TiVo won the trial agaisnt E* I believe. DirecTV knew TiVo could go after their R-15 too.
> 
> After that DirecTV had no fear at all, which might be why they began freely dropping their DirecTiVo accounts by the hundreds of thousands each quarter.


Seriously?????

You stated:



jacmyoung said:


> *Once DirecTV bought ReplayTV however was when DirecTV began to drop DirecTiVo boxes and replace them with their own DVRs*.


Then you start on about when D* started dropping DirecTiVo subs. You really need to get a better handle on the timeline.

c. December 2005 R15 released End of production of TiVo based R10 (Yes, I originally had the release date of the R15 as Spring 2006, but that has been corrected)

c. April 2006 - DirecTV and TiVo extend deal. This is months after the release of the R-15. This was also around the time of the first TiVo win. Maybe they were a little scared, but if so, smart enough to fix any future problems.

The point is once the R-15 was released, the TiVo based R10 became very hard to find. And this was months before any DirecTV-TiVo extension. See at the time, DirecTV was controlled by Rupert Murdoch. Every bit as shrewd as Charlie, but not quite as stubborn. But he was going to use his own design for his DVR's no matter what. Expecially since another one of his companies, NDS, was a beneficiary. It may have devolved into a patent lawsuit, but D* was smart enough to throw TiVo a few $M a month to keep them happy.

Then in August 2006, the HR20 was released and the HR10 was well on its way out, especially for those with MPEG-4 HD Locals.

And this was all a year before the Replay TV deal.


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## jacmyoung

Maverickjoe said:


> Jac, you need to read more carefully before you distort the facts:...


Except you conveniently left out the other "fact", that the same injunction also said, if E* is to try to design around, E* must first inform and then receive approval for implementation of such design around. The two "facts" co-exist, not mutually exclusive.

Unlike the old injunction, this new one clearly says, you either disable them, or if you wish to get around it (which is what the "design around" means), you must inform and get approval, no specific order implied. E* has been informing the court, now E* has made it clear that it plans to seek approval for final implementation.


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## jacmyoung

Herdfan said:


> Seriously?????


Of course!



> This was also around the time of the first TiVo win. Maybe they were a little scared, but if so, smart enough to fix any future problems.


Of course DirecTV was scared, did you read my above story? They settled with Forgent before the trial, when it was clear Forgent didn't really have as a strong case as TiVo. You don't think in the negotiations running up to the TiVo win, TiVo did not remind DirecTV about that TiVo v. E* case and how odds were totally against any accused infringers at that time in that E. TX court?

The rest of your facts only prove my point, that is, only after TiVo's win, DirecTV started to sell DirecTiVo in full force, and then only after DirecTV bought ReplayTV, they started to drop TiVo boxes.


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## Maverickjoe

jacmyoung said:


> Except you conveniently left out the other "fact", that the same injunction also said, if E* is to try to design around, E* must first inform and then receive approval for implementation of such design around. The two "facts" co-exist, not mutually exclusive.
> 
> Unlike the old injunction, this new one clearly says, you either disable them, or if you wish to get around it (which is what the "design around" mean), you must inform and get approval, no specific order implied. E* has been informing the court, now E* has made it clear that it plans to seek approval for final implementation.


Wow, this is surreal.

You actually believe and are trying to argue that for these two seperate ORDERS Dish has the option of choosing one or the other? Or that there is some ambiguity? Please let's not start yet another line of "if you say it enough times that everyone gets tired of hearing it, it becomes true".

What it does clearly say is:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end-user or subscriber. The DVR functionality, storage to and playback from a hard disk drive, shall not be enabled in any new placements of the Infringing Products."

AND, totally seperately...

"It is FURTHER ORDERED that Defendants shall inform this Court of any further attempt to design around the '389 Patent and shall seek approval from this Court before any such design- around is implemented."


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## jacmyoung

Maverickjoe said:


> Wow, this is surreal.
> 
> You actually believe and are trying to argue that for these two seperate ORDERS Dish has the option of choosing one or the other? Or that there is some ambiguity? Please let's not start yet another line of "if you say it enough times that everyone gets tired of hearing it, it becomes true".
> 
> What it does clearly say is:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end-user or subscriber. The DVR functionality, storage to and playback from a hard disk drive, shall not be enabled in any new placements of the Infringing Products."
> 
> AND, totally seperately...
> 
> "It is FURTHER ORDERED that Defendants shall inform this Court of any further attempt to design around the '389 Patent and shall seek approval from this Court before any such design- around is implemented."


Dish has no choice which injunction to follow, when the old injunction was active, it had to follow that one, when the old injunction was gone, it was no longer subject to it, it is now subject to this new injunction.

Of course that was a separate provision of the new injunction, the question you need to ask is, what will be the purpose of the "further design around"? It means one that follows the previous one don't you agree?

What was the previous design around for? To keep the DVRs working? So what might be the purpose of a "further design around" after the previously failed one? Did the court tell you what that purpose was for? No. So what do you think it means?

That this "further design around" cannot be to keep the DVRs working? Where does the new injunction say that?

BTW in the future I suggest you don't tell others what they should or should not say, I do not recall that you have ever been granted the authority to tell people what they should say.


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## Jhon69

The following was sent overnight to DISH Network retailers.

Quote:
We are disappointed in the Federal Circuit's split decision, but are pleased that Judge Rader agreed with our position.
Therefore, we will be seeking en banc review by the full Federal Circuit. We also will be proposing a new design-around
to the district court for approval.

Please don't necessarily believe what our competitors may be saying to you about the decision. Our competitors have
made inaccurate representations in the past and may do so again now. At this time, our DVR customers are not
impacted, and you can continue selling and servicing DVRs for new and existing customers.


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## jacmyoung

Maverickjoe said:


> ...The appelate court decision affirming Folsom's order was 26 pages long and very carefully described the decision and meticulously reasoned why it was the right one. That you don't like it is obvious, but it would help if you read it before suggesting it doesn't explain it's conclusions.


I missed this post of yours. Yes I have read the whole thing, as a result, I have found out the majority did not even address the new arguements E* raised during the appeal, simply said as far as those other arguements, they did not find them persuasive. Which led to my previous comments. Did you read the opinions yourself? The majority basically said Judge Folsom knew what he was doing so they had no issues with what he said, whatever the additional points E* you said we did not see the need to even address them. But of course had they actually tried to address those new points, like Judge Rader did, they might have come back with a different result.

Not saying they cannot do that, just that it seems such approach is in contrast to the spirit of a de novo review, and in contrast to what Judge Rader did.



> Whatever you think about the CAFC, or our entire justice system for that matter, these judges are very intelligent people doing a very difficult job. They don't deserve any of the abuse directed at them by forums like this regardless of whether you like or dislike their answers.


If you are really, I mean really concerned about the impact I might have on our entire justice system  Please be aware that you are barking at the wrong tree. Let me direct your attention at Judge Rader, who agreed to everything I said, point by point, and let me also bring you to the attention that Judge Rader is in line to be the Chief Circuit Judge, after Chief Judge Michel's retirement.

So please, if you think there is something wrong with what I have to say, you really need to be very concerned about what Judge Rader has to say too, and be really worried about the future of our entire justice system as a result


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## Lord Vader

jacmyoung said:


> ...and let me also bring you to the attention that Judge Rader is in line to be the Chief Circuit Judge, after Chief Judge Michel's retirement.


You do know, don't you, that such appellate court chief judgeships are done on rotational basis, so Rader becoming chief judge is no big deal.


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## dgordo

jacmyoung said:


> Not saying they cannot do that, just that it seems such approach is in contrast to the spirit of a de novo review, and in contrast to what Judge Rader did.


Not all parts of a review are to be done on a de novo basis. An appellate court only uses the de novo standard for issues regarding interpretation of law, not findings of fact.

The majority used the de novo standard of review to determine the meaning of the injunction without regard to Folsom's interpretation of the injunction.

The colorable difference analysis didn't involve question of law, these were questions of facts and so they applied the abuse of discretion and clear error standards.

Although he never says so, Judge Rader also applied the de novo standard when reviewing the meaning of the injunction, but didn't agree with the majority on the meaning.

And although he never says it, Rader uses the abuse of discretion and clear error standards when discussing the facts of the colorable difference analysis and clearly believes the facts show a contempt hearing was the wrong forum because he sees the differences as more than colorable.

A de novo review was performed by both the majority and the dissent. You can disagree with the results but the correct standards were applied.


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## jacmyoung

Lord Vader said:


> You do know, don't you, that such appellate court chief judgeships are done on rotational basis, so Rader becoming chief judge is no big deal.


I sure do, the point is, Judge Rader's state of mind, is most certainly a much bigger deal than mine, so if he is really really concerned about what I have to say, then he is barking on the wrong tree, because if you read Judge Rader's opinion, his state of mind tracks with what I believe point by point.


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## jacmyoung

dgordo said:


> ...The majority used the de novo standard of review to determine the meaning of the injunction without regard to Folsom's interpretation of the injunction...


But they did not use de novo review on determining whether the claim constructions are still met on all elements E* raised. Finding of infringement as a matter of law is also a review the appeals court must do de novo.

When E* argued in the appeals brief that their new design no longer "temporarily stores said audio and video data", no longer "extract" such data, no longer "convert" such data, and no longer "fill" such data, TiVo never really disputed them.

The majority simply said the above new arguments E* raised were not persuasive, without saying why, which is not a good example of a de novo review.

As I said however, E* shares the blame too, they raised the above new arguemnts only in the last minute. Even more so, they did not even capitalize on the crucial admission the TiVo expert made during the 02/09 hearing, when asked did he agree the new design did not temporarily store any data, he admitted that it no longer temporarily stored any data. I have quoted the statement back then.

The central argument TiVo raised was the E* expert statement back in 2006, even though it was proven a wrong statement, but nevertheless used by TiVo successfully, therefore E* should have focused on anything at all the TiVo expert admitted in counter argument, what was good for TiVo, was good for E*. But they did not.


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## dfd

jacmyoung said:


> But they did not use de novo review on determining whether the claim constructions are still met on all elements E* raised. Finding of infringement as a matter of law is also a review the appeals court must do de novo.
> 
> When E* argued in the appeals brief that their new design no longer "temporarily stores said audio and video data", no longer "extract" such data, no longer "convert" such data, and no longer "fill" such data, TiVo never really disputed them.
> 
> The majority simply said the above new arguments E* raised were not persuasive, without saying why, which is not a good example of a de novo review.
> 
> As I said however, E* shares the blame too, they raised the above new arguemnts only in the last minute. Even more so, they did not even capitalize on the crucial admission the TiVo expert made during the 02/09 hearing, when asked did he agree the new design did not temporarily store any data, he admitted that it no longer temporarily stored any data. I have quoted the statement back then.
> 
> The central argument TiVo raised was the E* expert statement back in 2006, even though it was proven a wrong statement, but nevertheless used by TiVo successfully, therefore E* should have focused on anything at all the TiVo expert admitted in counter argument, what was good for TiVo, was good for E*. But they did not.


So to summarize...

1. The district court judge was wrong
2. The jury was wrong
3. Tivo's attorney's were wrong
4. E*'s attorneys were wrong
5. The majority of the appeals court judges were wrong
6. One appeals judge, Charlie, and you were right.

Am I getting it?


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## BNUMM

I thought maybe Dish might have had a chance to win the appeal on the contempt charge. Now I am fairly certain that they are out of chances.


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## jacmyoung

dfd said:


> So to summarize...
> 
> 1. The district court judge was wrong
> 2. The jury was wrong
> 3. Tivo's attorney's were wrong
> 4. E*'s attorneys were wrong
> 5. The majority of the appeals court judges were wrong
> 6. One appeals judge, Charlie, and you were right.
> 
> Am I getting it?


The jury was partially wrong, but E* did infringe therefore Charlie was wrong back then, the appeals court was correct in the last decision, E* no longer infringes, so the district judge was also partially wrong, other than that you are right on

If you have problem with my statement above, you obviously must have the same problem with Judge Rader, because the above was pretty much Judge Rader's view too.

Judge Rader is undisputedly the most experienced circuit judge in patent law, so much so he is responsible of lecturing all other patent judges. It is one thing to be lucky to get one or two points that track his opinions, it is another thing to get each and every point right with him in this case. I say so as one only two years ago had no idea about the patent law and about this case for that matter, over time was able to research all the issues and also with the help of the others on both sides.

Wouldn't you be a bit proud if you did the same?


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## dgordo

jacmyoung said:


> But they did not use de novo review on determining whether the claim constructions are still met on all elements E* raised.


Neither did Judge Rader.



jacmyoung said:


> As I said however, E* shares the blame too, they raised the above new arguemnts only in the last minute. Even more so, they did not even capitalize on the crucial admission the TiVo expert made during the 02/09 hearing, when asked did he agree the new design did not temporarily store any data, he admitted that it no longer temporarily stored any data. I have quoted the statement back then.
> 
> The central argument TiVo raised was the E* expert statement back in 2006, even though it was proven a wrong statement, but nevertheless used by TiVo successfully, therefore E* should have focused on anything at all the TiVo expert admitted in counter argument, what was good for TiVo, was good for E*. But they did not.


I agree. E* lawyers should have brought up these issue a long time ago and IMO the CAFC was correct to ignore these issues since the appellate court is only really supposed to consider issues previously raised.


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## dgordo

jacmyoung said:


> Judge Rader is undisputedly the most experienced circuit judge in patent law, so much so he is responsible of lecturing all other patent judges.


That would be news to Judge Lourie. 

All the judges on the CAFC are well respected judges with a incredible understanding of patent law, even the ones you disagree with.


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## dfd

jacmyoung said:


> The jury was partially wrong, but E* did infringe therefore Charlie was wrong back then, the appeals court was correct in the last decision, E* no longer infringes, so the district judge was also partially wrong, other than that you are right on
> 
> If you have problem with my statement above, you obviously must have the same problem with Judge Rader, because the above was pretty much Judge Rader's view too.
> 
> Judge Rader is undisputedly the most experienced circuit judge in patent law, so much so he is responsible of lecturing all other patent judges. It is one thing to be lucky to get one or two points that track his opinions, it is another thing to get each and every point right with him in this case. I say so as one only two years ago had no idea about the patent law and about this case for that matter, over time was able to research all the issues and also with the help of the others on both sides.
> 
> Wouldn't you be a bit proud if you did the same?


I have no reason to believe the jury was wrong. They based their decision upon the claims, the arguments, and the judge's instructions. The CAFC ruled that the judge's instruction were wrong NOT that the jury made a mistake IIRC.

Where does the CAFC state that E* no longer infringes?

So far you have turned every decision against E* as a mistake, biased, or what E* intended.

The fact is that E*:

1. was found to be infringing
2. had their appeal denied
3. had the SCOTUS refuse to hear their case
4. has been found in contempt
5. had their workaround declared no more than colorably different
6. had their appeal of contempt denied

You've predicted the contrary almost every time I think.

Still feel proud?


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## jacmyoung

dfd said:


> ...Still feel proud?


If you had no prior knowledge, nor any experience in the subject, after self education, you manage to get each and every one of your points agreed upon by a judge who is selected to provide lectures to all other patent judges, then why not be proud of yourself.

The other side (except Curtis52) never did have any independent research done, they only read what the judges said and repeated them, the fact they agreed with the majority of the judges is a thrill to them for sure, and they can all be proud of that too.


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## jacmyoung

dgordo said:


> Neither did Judge Rader.


Here is what the law says. The law requires that at the first instance it is determined the claim element is no longer met, i.e. the accused device may no longer infringe, the court should go no further, the contempt proceeding is no longer appropriate. Which was exactly what Judge Rader did.

On the other hand, the mover bears the burden of proof by clear and convincing evidence that infringement still exists, to do so I think you agree all disputed elements must be met. The non-mover bears the burden of raising the claims that the elements are no longer met, the mover must prove otherwise on each and every one of such claims to meet the proof by clear and convincing evidence standard.

The majority did not follow that rule when E* raised many new claims as I listed earlier, and when TiVo did not dispute those new claims.



> I agree. E* lawyers should have brought up these issue a long time ago and IMO the CAFC was correct to ignore these issues since the appellate court is only really supposed to consider issues previously raised.


Then you have disagreed with Judge Clark I suppose. As he said the de novo review must review all issues raised on appeal, even if some of the issues are not raised at the lower court. Unless if by law there is a waiver of such issues which will have violated the rule of a de novo review. He suggested in some rare cases the court should not insist on a de novo review.

But here is where I will go one step further to make you agree with me If E* did not raise such claim element issues during the contempt hearing, then TiVo did not get the opportunity to examine the code and dispute such claims. On that point, I think it is E* to blame if the majority ignored such claims.

So the question is, whether E* had raised enough issues during the contempt hearing? As I said, other than the "parse" and "audio and video data" elements, E* also raised the "temporarily stores" element, got the TiVo expert to admit this element was no longer met, but E* did not point that out in their final arguments.

As far as Judge Rader is concerned however, the "parse" and "audio and video data" claim elements were sufficient enough, so he did not see the need to go further.


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## Lord Vader

dfd said:


> I have no reason to believe the jury was wrong.


I am not saying they're wrong in this case; however, when it comes to patent/trademark law and similar technical legal issues, I'd prefer that a judge hear the case and not a jury if I am the defendant. if I'm the plaintiff, I'd want the jury. Why?

Well, patent/trademark/copyright law is so complex, confusing, and just downright headache-causing, that a jury will most likely have no idea what's what. They'll usually rule on emotions or the persuasiveness of the attorney. A judge, however, has the brains to (a) know what the legal issues are and (b) to rule impartially and objectively.

Anyone who doubts this need only look at the intelligence of the OJ Simpson jury as an example of how a jury can easily not have a clue as to what the facts are--and that was a simple murder case and not some federal patent case!


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## James Long

Lord Vader said:


> if I'm the plaintiff, I'd want the jury. Why?
> 
> Well, patent/trademark/copyright law is so complex, confusing, and just downright headache-causing, that a jury will most likely have no idea what's what. They'll usually rule on emotions or the persuasiveness of the attorney. A judge, however, has the brains to (a) know what the legal issues are and (b) to rule impartially and objectively.


So you would rather just win than have a impartial and objective judgment? If you have the facts on your side you should win anyways.

So by asking for a trial method that you believe is partial to plaintiffs you're admitting, to some extent, that you can't win based on an impartial judgment.


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## Lord Vader

What I want may be irrelevant, Jim, because if I'm suing, I want to win. If I had the choice of an ignorant jury that's more likely to find for me or a smarter, objective judge hearing my case but who's more likely to rule for the defendants, I'll take the jury all the time. Why do you think that a lot of times in civil cases, plaintiffs ask for juries and not judges? It's because they know the odds are more in their favor.


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## coldsteel

James Long said:


> So you would rather just win than have a impartial and objective judgment? If you have the facts on your side you should win anyways.
> 
> So by asking for a trial method that you believe is partial to plaintiffs you're admitting, to some extent, that you can't win based on an impartial judgment.


Unfortunately, that is exactly right.


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## jacmyoung

Lord Vader said:


> I am not saying they're wrong in this case;...


I guess the issue can be easily settled by dgordo, when the appeals court overturns a jury verdict, is it to say that the jury's verdict is wrong?

Or if the jury's verdict is not wrong, can it be overturned? I have a feeling the answer might be more complicated than we think


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## dfd

Lord Vader said:


> I am not saying they're wrong in this case; however, when it comes to patent/trademark law and similar technical legal issues, I'd prefer that a judge hear the case and not a jury if I am the defendant. if I'm the plaintiff, I'd want the jury. Why?
> 
> Well, patent/trademark/copyright law is so complex, confusing, and just downright headache-causing, that a jury will most likely have no idea what's what. They'll usually rule on emotions or the persuasiveness of the attorney. A judge, however, has the brains to (a) know what the legal issues are and (b) to rule impartially and objectively.
> 
> Anyone who doubts this need only look at the intelligence of the OJ Simpson jury as an example of how a jury can easily not have a clue as to what the facts are--and that was a simple murder case and not some federal patent case!


best root password I was ever told in a Fortune 500 company: ojdidit


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## dgordo

jacmyoung said:


> I guess the issue can be easily settled by dgordo, when the appeals court overturns a jury verdict, is it to say that the jury's verdict is wrong?
> 
> Or if the jury's verdict is not wrong, can it be overturned? I have a feeling the answer might be more complicated than we think


The job of the fact finder, whether a jury or a judge, is to take the facts presented, determine what is credible and apply the facts you believe to the instructions.

When a jury verdict is overturned on appeal, like here because of improper jury instructions, it is usually assumed that the judge was wrong because he is charged with giving the jury proper instructions.


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## dgordo

jacmyoung said:


> Here is what the law says. The law requires that at the first instance it is determined the claim element is no longer met, i.e. the accused device may no longer infringe, the court should go no further, the contempt proceeding is no longer appropriate. Which was exactly what Judge Rader did.


That is a factual inquiry.



jacmyoung said:


> Then you have disagreed with Judge Clark I suppose.


Yes, an appellate court shouldn't consider any issues that were never raised previously. That is what a court of first impression should do.


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## jacmyoung

dgordo said:


> ...When a jury verdict is overturned on appeal, like here because of improper jury instructions, it is usually assumed that the judge was wrong because he is charged with giving the jury proper instructions.


Unfortunately in this case, the appeals court said, even if...we would still not be able to conclude that any reasonable jury would have reached a verdict as they did. Which has always been why I said the jury simply did not pay attention to the terms "separate", "assemble" and "a", three specific terms in the hardware claims the old DVRs did not meet.

The mistake Judge Folsom made was he told the jury if they found infringement by the equivalents, they could then not decide literal infringement. Seemed to me the appeals court tried to avoid saying that the jury was wrong.


----------



## jacmyoung

dgordo said:


> ...Yes, an appellate court shouldn't consider any issues that were never raised previously. That is what a court of first impression should do.


If you read Judge Clark's opinion, he was saying the opposite, he said the de novo review required the appeals court to also look at issues not raised before, which he had some problem with, he then suggested in some rare cases maybe the appeals court should abandon the de vono review rule.

I guess my question is, do you think the finding of infringement as a matter of law, is it done by the appeals court under de novo review or not? I am speaking only the review of the finding of infringement, not how to proceed after the finding is made.


----------



## Curtis52

Do my eyes deceive me? Didn't Judge Rader realize that this order was proposed but never signed?

Rader:



> The district court ultimately sided with Tivo:
> Defendants are hereby FURTHER ORDERED immediately to recall and
> retrieve from their distributors and retailers the Infringing Products that
> have not yet entered the stream of commerce or are still in the possession
> of Defendants' distributors and retailers.​


----------



## jacmyoung

Curtis52 said:


> Do my eyes deceive me? Didn't Judge Rader realize that this order was proposed but never signed?
> 
> Rader:


It shows the *intent* of TiVo and the court at that time. Judge Rader was saying the physical recall was considered, that fact alone demonstrated that TiVo and the court were concerned that E* might have used the software download short cut, they were debating whether they should allow any easy way out for E*. But once it was determined that physical recall was not necessary, it was clear to the infringer that software download alone was considered a sufficient way to avoid infringement. Judge Rader also quoted TiVo as saying so exactly, a quote he repeated to Mr. Waxman twice during the hearing too.

Therefore TiVo's current interpretation cannot result in a conclusion that the only way to avoid infringement is to physically remove those DVRs, because such was considered, debated and abandoned, that was what Judge Rader was saying. But since TiVo's current interpretation indeed renders a software download impossible to avoid infringement, unless of course *any DVR fucntions are disabled, infringing or not*, therefore TiVo has reframed the intent of the injunction.

That is why Judge Rader never attacked the injunction, rather attacked TiVo's manipulation of the intent of the injunction.

On a second note, I now realize what dgordo tried to say. A de novo review is a fact-finding process. Since those new claims E* raised during the appeal were not raised during the contempt hearing, therefore no facts were available to support those claims, therefore the claims need not be de-novo reviewed.

As Joe correctly pointed out earlier, the design around and court review efforts are very costly, it appears E* has put so much into the design around but only half the effort into defending it. At one time E* said repeatedly they were going to "rigorously" defend their effort, their action did not live up to the claim.


----------



## Maverickjoe

jacmyoung said:


> Dish has no choice which injunction to follow, when the old injunction was active, it had to follow that one, when the old injunction was gone, it was no longer subject to it, it is now subject to this new injunction.
> 
> Of course that was a separate provision of the new injunction, the question you need to ask is, what will be the purpose of the "further design around"? It means one that follows the previous one don't you agree?
> 
> What was the previous design around for? To keep the DVRs working? So what might be the purpose of a "further design around" after the previously failed one? Did the court tell you what that purpose was for? No. So what do you think it means?
> 
> That this "further design around" cannot be to keep the DVRs working? Where does the new injunction say that?
> 
> BTW in the future I suggest you don't tell others what they should or should not say, I do not recall that you have ever been granted the authority to tell people what they should say.


I've read this over and over and I presume that others have too, so for those of us that have absolutley no idea what it says, could you please try this again with other words. I think you were trying to prove why you think that Dish has the option to EITHER disable the DVRs OR ask the court to approve a design-around. Thanks in advance!


----------



## jacmyoung

Maverickjoe said:


> I've read this over and over and I presume that others have too, so for those of us that have absolutley no idea what it says, could you please try this again with other words. I think you were trying to prove why you think that Dish has the option to EITHER disable the DVRs OR ask the court to approve a design-around. Thanks in advance!


I am more than happy to do so, but will do it this time in a different angle so bear with me.

Assume by odds en banc review will fail and the mandate will be issued. Several things will happen. TiVo no doubt will argue for more sanctions for E*'s conduct after 6/2/09. TiVo will also argue that E* must disable the DVRs before any approval of further design around.

E*'s will have several counter arguments. For starter, sanctions are imposed for gross misconducts. After 6/2/09, while the injunction has been stayed, E* followed the "inform" provision religiously, repeatedly informed Judge Folsom of their "further design arounds", with tones of technical documents and legal analyses submitted, on at least two, may be even more new design around plans and beta tests. It would be unreasonable to impose additional sanctions on those facts.

More importantly, Judge Rader has rigorously defended E*'s prior conduct, therefore if Judge Folsom imposes additional sanctions, he will in essence have imposed sanctions against Judge Rader's rigorous support of E*'s conduct.

If TiVo opposes such decision not to impose sanctions, can TiVo appeal? Of course, but remember the appeals panel majority has taken the position already that pretty much everything Judge Folsom does, they would not interfere, they decided they'd rather let Judge Folsom make his call.

The same is true to the additional design around efforts to keep the DVR working. As I explain earlier, the new injunction allows "further design around", as long as E* informs and obtains approval of such further design around.

TiVo will of course likely oppose such plan, argue that E* must first disable the DVRs. But again E*'s counter argument will be that first the new injunction by its letters allows further design around to keep the DVR working, second, again Judge Rader made a compelling argument that TiVo cannot insist that the only way to avoid infringement is to physically remove the DVRs, therefore they must allow the attempt to avoid infringement without physically removing the DVRs. Please keep in mind the majority did not dispute Judge Rader's such argument, they were only saying they do not want to make the decision for Judge Folsom, they will trust Judge Folsom to make the decision.

So it comes down to what Judge Folsom will do. Will he agree with TiVo, make the decision to not allow E* to avoid infringement through a software download at all? Even though his new injunction clearly says it can be done, just that E* needs to inform him and get his approval, and even though Judge Rader said clearly, and the majority does not dispute, that attempts through software download are allowed?

If Judge Folsom in the end does approve the further design around, can TiVo appeal and object to such approval? Of course TiVo can, but as the appeals court majority already said, they had no intention to disturb whatever Judge Folsom may decide.

The bottom line is, Judge Rader's rigorous defense of E*, not only gives E* hope for an en banc review, but more importantly establishes the foundation for continued design around review and approval process to take place, while the DVRs continue to work.


----------



## Maverickjoe

James Long said:


> So you would rather just win than have a impartial and objective judgment? If you have the facts on your side you should win anyways.
> 
> So by asking for a trial method that you believe is partial to plaintiffs you're admitting, to some extent, that you can't win based on an impartial judgment.


I would submit that the first priority is to win your lawsuit, especially one that you commit tens of millions of dollars to fight and that could put you out of business if you lose. Sorry, but that's just capitalism doing what it does. The fact that Charlie would make that commitment must have been based on his belief that he had the facts on his side.

The reality is that winning or losing goes well beyond the facts - it involves legal strategies, defensive and offensive tactics, etc. For example, Dish not appealing the first injunction turns out to be the single, biggest legal blunder of the case. Look what would have happened - as Rader said, the appeals court would have ruled that the injunction could not disallow design-arounds that were non-infringing and would have ordered Folsom to do it all over again, which would have taken months.:nono2:

Another legal mega-blunder was Dish not arguing to the court that the original injunction was designed for a verdict that included both hardware and software infringement. It's almost inconceivable that Dish could download a design-around for infringing hardware, that's why Folsom said shut off all DVR functions, and then prescribed the hardware changes that constituted it. When the appeals came back and reversed and remanded the hardware verdict (and not, as jac would have you believe, found the hardware to be non-infringing - that option is still out there for TiVo to pursue should they choose to) - Dish had yet another opportunity to go to Folsom to reconsider the injunction and failing that appeal the injunction again.:nono2:

I would conclude that both parties had compelling facts on their sides, both sides were committed to bet the company on the case, but TiVo had a better legal strategy and more competent legal team.:grin:

BTW, I'm from Boston and I've never been proud of coming in second place, no matter how close or what the excuse. Around here we say that second place is the first loser:lol: (and second place between two competitors is DFL).


----------



## Maverickjoe

jacmyoung said:


> So it comes down to what Judge Folsom will do. Will he agree with TiVo, make the decision to not allow E* to avoid infringement through a software download at all? Even though his new injunction clearly says it can be done, just that E* needs to inform him and get his approval, and even though Judge Rader said clearly, and the majority does not dispute, that attempts through software download are allowed?
> 
> If Judge Folsom in the end does approve the further design around, can TiVo appeal and object to such approval? Of course TiVo can, but as the appeals court majority already said, they had no intention to disturb whatever Judge Folsom may decide.


That's not even close to what you said before. This is what you said before:


jacmyoung said:


> Unlike the old injunction, this new one clearly says, you either disable them, or if you wish to get around it (which is what the "design around" means), you must inform and get approval, no specific order implied. E* has been informing the court, now E* has made it clear that it plans to seek approval for final implementation.


Now please explain where this injunction "clearly says, *you either disable them, or if you wish to get around it* (which is what the "design around" means), you must inform and get approval." Thanks again in advance.:lol:


----------



## Syzygy

From page 13 of the CAFC Decision pdf:


> Finally, we reject EchoStar's argument that evidence of its good faith suffices to protect it from any finding of contempt. EchoStar argues that *it paid 15 engineers to spend 8000 hours on the redesign*, which took a year. Similarly, it stresses the fact that it obtained an opinion of noninfringement from a respected patent law firm. It further contends that the redesign compromised performance in order to avoid infringement of TiVo's patent, giving it *a product inferior to what it previously had*. In light of this evidence, EchoStar argues, the district court was prohibited from utilizing a contempt hearing in this case.


15 engineers spending 8000 hours? This could mean 15 engineers working full time for 67 days each -- but more likely it means 15 engineers assigning an average of 533 hours over a very long period such as a year, with many of those hours really spent on general administrative tasks and not on any specific billable task.

So, Dish now has "a product inferior to what it previously had?" I'm not a Dish subscriber; could someone weigh in on what that means?


----------



## Curtis52

Syzygy said:


> So, Dish now has "a product inferior to what it previously had?" I'm not a Dish subscriber; could someone weigh in on what that means?


The new software uses statistical analysis to estimate the starting point of the video the user wants to watch during trick play. The previous method used already recorded pointers to the exact locations of trick play events to play back the video.


----------



## Syzygy

From page 33 of the CAFC Decision pdf, in the middle of Judge Rader's dissent:


> In its redesign efforts, Echostar eliminated its video frame start-code detection in its entirety. Rather than parsing through all the video and audio data before storing onto the system, the modified design, upon request from the user, statistically estimates where a given frame might appear long after storage of the video and audio data. This change was a critical component of a vast redesign effort by *fifteen engineers working full time for over 800 total hours*. Before proceeding, Echostar got two separate approvals of this change from an independent law firm.


This is, evidently, Judge Rader's own error (or that of one of his law clerks). That, coupled with the bitter and extremist tone of the entire dissent, makes me feel like dismissing the dissent as mere partisan whining.

[See *Post #2* for the link to the pdf in question.]

[P.S.] Wikipedia says:


> Chief Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit announced Friday, November 29th that he is stepping down as chief and retiring from the judiciary effective May 31, 2010, the Federal Circuit Bar Association. Judge Randall R. Rader is next in line for chief judge.


----------



## Syzygy

Curtis52 said:


> The new software uses statistical analysis to estimate the starting point of the video the user wants to watch during trick play. The previous method used already recorded pointers to the exact locations of trick play events to play back the video.


Yeah, that's exactly what the CAFC Decision pdf says. As you know, I read it.

To clarify, what I would like to know is: *As users, what evidence do you see of "compromised performance?"*


----------



## jacmyoung

Maverickjoe said:


> ...(and not, as jac would have you believe, found the hardware to be non-infringing - that option is still out there for TiVo to pursue should they choose to) ...


Wrong, this option is closed because when Judge Folsom first proposed his "bench trial" for 02/09 hearing, he ordered both the software and hadware claims analyses for infringement eveluation, but TiVo said no, we would not go there regarding the hardware claims, only the software claims. If TiVo later tries to revisit this issue, E* can easily defeat it.

Now if they actually go to a new jury trial, then yes TiVo may revisit it, but unlikely because the appeals court had made it very clear that the old DVRs did not meet the three claim terms, "separate", "assemble" and "a".


----------



## jacmyoung

Maverickjoe said:


> That's not even close to what you said before. This is what you said before:
> 
> Now please explain where this injunction "clearly says, *you either disable them, or if you wish to get around it* (which is what the "design around" means), you must inform and get approval." Thanks again in advance.:lol:


Because the injunction does not say you must *first* disable the DVR functions, *then* inform and seek approval, I have already explained it, if you did not read it, that was not my problem.

BTW, I suggest maybe you do not try to speak for other people in the future by the use of word "we", because I do not recall you were ever elected by others to speak on their behalf. If others cannot understand me, or disagree, they are free to post themselves.


----------



## jacmyoung

Syzygy said:


> Yeah, that's exactly what the CAFC Decision pdf says. As you know, I read it.
> 
> To clarify, what I would like to know is: *As users, what evidence do you see of "compromised performance?"*


You have missed the whole point. E* did not try to design around to make a better product, rather to avoid paying TiVo damages. In doing so they had to come up with a way to get around the TiVo invention, which by itself made for an efficient use of the DVR CPU power.

As a result, the new design is less efficient than the old design, even so, it was still a huge labor intensive work, not just the redesign, recoding, beta testing, but reprogramming the DVRs in the field and trouble shooting all the bugs just like any new software designs do.

I don't understand why you said Judge Rader was wrong to point out E* had 15 engineers working 800 hours, that was a fact even TiVo did not dispute.

There were many reports of issues such as pictures breaking up during DVR trickplays in the newly designed DVRs, especially in those old models with less powerful CPUs, all the evidence that the design around was not just some insignificant trick played by E*.


----------



## Maverickjoe

jacmyoung said:


> Because the injunction does not say you must *first* disable the DVR functions, *then* inform and seek approval, I have already explained it, if you did not read it, that was not my problem.


Here's what is says exactly, for the third time. Please read it this time before responding:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end-user or subscriber. The DVR functionality, storage to and playback from a hard disk drive, shall not be enabled in any new placements of the Infringing Products."

But you raise an excellent line of reasoning I think Dish's legal team could have pursued, along with some other logical extensions:
1. You're correct, it doesn't say which comes first between the several independent ORDERS contained within the injunction
2. It doesn't say which Base the number is in, it could be Base 200, which would be a multi-year period
3. It doesn't say which planet's orbital day, if any, should be used to calculate one day
4. It doesn't define the word "issuance" - maybe that means everyone has to get a copy so if Charlie never opens his mailbox it's not yet "issued"

There are so many other holes in this ORDER it's astounding Dish's lawyers weren't as smart you to see this ambuguity, or mine.


----------



## Kheldar

Maverickjoe said:


> Here's what is says exactly, for the third time. Please read it this time before responding:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end-user or subscriber. The DVR functionality, storage to and playback from a hard disk drive, shall not be enabled in any new placements of the Infringing Products."
> 
> But you raise an excellent line of reasoning I think Dish's legal team could have pursued, along with some other logical extensions:
> 1. You'r correct, it doesn't say which comes first between the several independent ORDERS contained within the injunction
> 2. It doesn't say which Base the number is in, it could be Base 200, which would be a multi-year period
> 3. It doesn't say which planet's orbital day, if any, should be used to calculate one day
> 4. It doesn't define the word "issuance" - maybe that means everyone has to get a copy so if Charlie never opens his mailbox it's not yet "issued"
> 
> There are so many other holes in this ORDER it's astounding Dish's lawyers weren't as smart you to see this ambuguity, or mine.


:grin::grin::grin::grin::grin::grin:


----------



## jacmyoung

Maverickjoe said:


> ...There are so many other holes in this ORDER it's astounding Dish's lawyers weren't as smart you to see this ambuguity, or mine.


All we know is what E* said what they were going to do next, they will seek en banc, and at the same time ask for approval from Judge Folsom, I have stated what I think the likely arguments from both sides if the approval is sought, including the relevance of Judge Rader's support for E* and the liklihood of Judge Folsom going against Judge Rader when the majority themselves did not dispute that particular argument of Judge Rader's.

If E* team should change its plan, we will go from there.

Now if you have anything to say about the specific points I made in that regard, be my guest, anything else is no interest to me because they do not address my points therefore are irrelevant.

You asked me a question, I answered it, you said you did not understand but also did not think I answered correctly, you asked me to provide an alternative answer, which I did. Instead of addressing my new answer, you decided to ignore it and go back to attack my old answer which you had already dismissed earlier. Is it because you did not like my current answer? If so you have no one to blame, you asked for it


----------



## Maverickjoe

jacmyoung said:


> All we know is what E* said what they were going to do next, they will seek en banc, and at the same time ask for approval from Judge Folsom, I have stated what I think the likely arguments from both sides if the approval is sought, including the relevance of Judge Rader's support for E* and the liklihood of Judge Folsom going against Judge Rader when the majority themselves did not dispute that particular argument of Judge Rader's.


Judge Rader's dissent has no relevance whatsoever in Judge Folsom's court. Nada, Zippo, Zilch. In fact, Folsom's ruling and handling of the case have been 100% affirmed in full, it's Rader (and you) that are on the outside looking in.

BTW, the majority disputed nearly everything Rader said in their majority opinion, you just read it backwards.



jacmyoung said:


> You asked me a question, I answered it, you said you did not understand but also did not think I answered correctly, you asked me to provide an alternative answer, which I did. Instead of addressing my new answer, you decided to ignore it and go back to attack my old answer which you had already dismissed earlier.


I asked you twice to justify your repeated statement that Dish has some mystery option that they don't have to turn off the DVRs within 30 days. Twice you dodged the answer. Let's just admit you were wrong, the injunction is enforceable by it's plain language, as affirmed by the CAFC.:sure:


----------



## jacmyoung

Maverickjoe said:


> ...it's Rader (and you) that are on the outside looking in.


Did I tell you I am proud of been named next to Judge Rader? At one point you were very proud of Judge Rader saying "all means all", where is your spirit?


----------



## Maverickjoe

jacmyoung said:


> Did I tell you I am proud of been named next to Judge Rader? At one point you were very proud of Judge Rader saying "all means all", where is your spirit?


I have no recollection of being proud of Rader saying "all means all". Perhaps you are thinking of someone else, or making more assumptions.

Is it cold outside?:lol:


----------



## Curtis52

The amazing thing is that Rader couldn't tell the difference between a proposed order and a signed order and based his dissent on that mistake.

From Rader's dissent:



> Tivo requested that Echostar "be ordered to recall and retrieve from its distributors and retailers the infringing DVR products that have not yet entered the stream of commerce or are in the possession of the distributors and retailers."
> .
> .
> 
> The district court ultimately sided with Tivo:
> Defendants are hereby FURTHER ORDERED immediately to recall and
> retrieve from their distributors and retailers the Infringing Products that
> have not yet entered the stream of commerce or are still in the possession
> of Defendants' distributors and retailers.​


The order that Rader quoted was a proposed order that was never signed. The court didn't side with TiVo. Judge Rader screwed up big time.


----------



## jacmyoung

Maverickjoe said:


> I have no recollection of being proud of Rader saying "all means all". Perhaps you are thinking of someone else, or making more assumptions.
> 
> Is it cold outside?:lol:


Or perhaps you have finally listened to me and abandoned the "we" strategy? BTW this time I am not going to explain to you if you do not understand what I am saying about the "we" thing

"All" in TiVo's own words when it tried to explain what the injunction was supposed to do back in 2006, meant "all the [infringing] DVRs", as TiVo stated E* could disable *the infringing DVR functions* from *all the DVRs* through satellite reprogramming, not *any DVR functions, infringing or not*.

The majority's position is, they will let Judge Folsom decide what to do. The above TiVo's statement of intent was never used in the past, shame on E*'s lawyers for not finding that one, it took Mr. Waxman mistakenly quoting it during the oral argument, Judge Rader catching it, to bring it to the open.

Now it is in the open, hopefully this statement of TiVo's can guide Judge Folsom's next step Because after all, the injunction is supposed to serve the patent owner's own stated intent at the time of the framing of the injunction. As Judge Rader said, TiVo cannot later alter its own stated intent to broaden it.

That is if the en banc review is denied of course.


----------



## jacmyoung

Curtis52 said:


> The amazing thing is that Rader couldn't tell the difference between a proposed order and a signed order and based his dissent on that mistake.
> 
> From Rader's dissent:
> 
> The order that Rader quoted was a proposed order that was never signed. The court didn't side with TiVo. Judge Rader screwed up big time.


As I have explain earlier, Judge Rader was trying to expose TiVo's own intent at the time of the framing of the injunction, by drawing a distinction between the two different treatments TiVo had recommended to Judge Folsom with regard to the DVRs already in the users homes, and the ones still at the stores and distributors.

TiVo specifically asked the judge to recall the DVRs not already at the users' homes, but not the ones already at the end users' homes, therefore it is clear to the court that TiVo at the time allowed modification to avoid infringement for the DVRs in the end users' homes, without having to physically remove or replace them.

As such TiVo cannot possibly interpret its own injunction now, to result in an outcome in which efforts to avoid infringement cannot be performed through satellite reprogramming.

Therefore the question now is, can E* continue to try to avoid infringement through satellite reprogramming, without having to physically remove the DVRs. That in addition to TiVo's own statement back then that they said E* could (for the DVRs at the end users) disable *the infringing DVR functions* from all the DVRs through satellite reprogramming. The two statements of TiVo's clearly show the true intent of the injunction.

Then we can look at what the new injunction is saying, it adds a provision that says, if E* is to try "further design around", E* must inform and obtain approval. Clearly here also, "further design around" to try to keep the DVR working is allowed, as long as E* informs and obtains approval.

E* will likely inform Judge Folsom the above TiVo's intent, and seek approval to keep the DVRs working. Judge Folsom will of course decide what to do, while keeping in mind that the appeals court did not tell him what he should or should not do, the majority said it will be his decision to make.

Can he still insist that the DVRs be disabled? Of course, but then the question is, what's the "inform and approval" for? Why put something in there if it will not be applied? And what about TiVo's own statement back then too? TiVo never mentioned that statement during the contempt proceeding, for good reasons, but it is now exposed.


----------



## dfd

jacmyoung said:


> Can he still insist that the DVRs be disabled? Of course, but then the question is, what's the "inform and approval" for? Why put something in there if it will not be applied? And what about TiVo's own statement back then too? TiVo never mentioned that statement during the contempt proceeding, for good reasons, but it is now exposed.


How about this for an explanation of, "inform and approval":

1. E* will notify the court when they have a work around they want the court to evaluate
2. The judge will review it
3. If he feels it is more than colorably different he will approve it otherwise he won't
4. if it is approved by the judge, the s/w can be spooled to the DVRs


----------



## jacmyoung

dfd said:


> How about this for an explanation of, "inform and approval":
> 
> 1. E* will notify the court when they have a work around they want the court to evaluate
> 2. The judge will review it
> 3. If he feels it is more than colorably different he will approve it otherwise he won't
> 4. if it is approved by the judge, the s/w can be spooled to the DVRs


After or before E* is to spool a software to disable "any DVR functions"? If after, how about the software to disable "any DVR functions"? Should this one be reviewed too? What if E* tells the court they actually have a new software to disable "any DVR funcitons" in order to avoid infringement, which of course also constitutes a "further design around", i.e. to design the DVRs into non-DVRs, should it be reviewed for approval too? What if E* lies? The whole "inform and approval" is put in there to not allow E* to do anything on its own, but get approval first.

Judge Folsom wants to be in charge this time, to review any new software that is to be spooled, and approve it, before implementation.


----------



## jacmyoung

Curtis52 said:


> The amazing thing is that Rader couldn't tell the difference between a proposed order and a signed order and based his dissent on that mistake.
> 
> From Rader's dissent:
> 
> The order that Rader quoted was a proposed order that was never signed. The court didn't side with TiVo. Judge Rader screwed up big time.


After reading your post again, I think I know your point. I guess the question is, did the court side with TiVo on that request? Is it necessary for the court to actually sign off on that order to say the court sided with TiVo on that one? More importantly, is it necessary for the court to sign off on the proposed order in order to show TiVo's intent? Is TiVo's proposal enough to show its intent?

I don't know the detail on that one, maybe the court sided with TiVo but ultimately did not sign off on it for some reason? Maybe TiVo in the end decided not to bother? Some one may know more.


----------



## Maverickjoe

jacmyoung said:


> After reading your post again, I think I know your point. I guess the question is, did the court side with TiVo on that request? Is it necessary for the court to actually sign off on that order to say the court sided with TiVo on that one? More importantly, is it necessary for the court to sign off on the proposed order in order to show TiVo's intent? Is TiVo's proposal enough to show its intent?
> 
> I don't know the detail on that one, maybe the court sided with TiVo but ultimately did not sign off on it for some reason? Maybe TiVo in the end decided not to bother? Some one may know more.


This post is 100% unintelligible to me. Can anyone tell me what this means?:nono2:


----------



## Maverickjoe

jacmyoung said:


> After or before E* is to spool a software to disable "any DVR functions"? If after, how about the software to disable "any DVR functions"? Should this one be reviewed too? What if E* tells the court they actually have a new software to disable "any DVR funcitons" in order to avoid infringement, which of course also constitutes a "further design around", i.e. to design the DVRs into non-DVRs, should it be reviewed for approval too? What if E* lies? The whole "inform and approval" is put in there to not allow E* to do anything on its own, but get approval first.
> 
> Judge Folsom wants to be in charge this time, to review any new software that is to be spooled, and approve it, before implementation.


I get the last sentence, but the rest is not understandable either. I won't bother asking for another explanation because we have learned they have no relationship to the original post. Am I the only one here?


----------



## jacmyoung

Maverickjoe said:


> This post is 100% unintelligible to me. Can anyone tell me what this means?:nono2:


Maybe because you have no clue yourself what happened back then? If so why don't you wait for someone who has the answer to post? Just because you cannot read, does not mean others cannot either.


----------



## jacmyoung

Maverickjoe said:


> I get the last sentence, but the rest is not understandable either. I won't bother asking for another explanation because we have learned they have no relationship to the original post. Am I the only one here?


At least you are not saying everyone else does not understand.

Why don't you let dfd respond, he asked the question, I answered, if he did not understand, or believe my answer makes no sense, he can tell me, maybe I will try to explain more.

Why do you always have to do other's job for them? You don't think others are good enough to discuss the issues for themselves? You are clearly not the only one here, how can you not realize this already? Still trying to speak for everyone else I guess.

Beside, if you get the last sentence, don't you think it answers dfd's question just fine?

Judge Folsom will not let E* download any new software unless he approves it first. Therefore the answer defeats your interpretation that E* must *first* download a new software to disable the DVR functions, *then*...any and all new software must be reviewed and approved first.

Let's say TiVo argues E* must first download a new software to disable any DVR functions, E* says well we have this software ready to do just that, don't you think Judge Folsom should approve it first? Because the injunction says so. If TiVo says no, there is no need for approval, then E* downloads it, and it turns out there still are some DVR functions or anything at all TiVo just does not like, can TiVo then come back and complain? Wouldn't TiVo have coaxed E* to violate the injunction by telling E* they did not have to obtain an approval for that software download?

Now you see why this whole "inform and approval" thing is just a strange thing to deal with.


----------



## Greg Bimson

jacmyoung said:


> Judge Folsom will not let E* download any new software unless he approves it first.


I believe this is a misinterpretation. A download to disable DVR functionality is not a download to workaround the claims of the Time Warp patent.


----------



## jacmyoung

Greg Bimson said:


> I believe this is a misinterpretation. A download to disable DVR functionality is not a download to workaround the claims of the Time Warp patent.


Of course it is, to disable the DVR functions you naturally no longer infringe, therefore whatever that software download is to achieve the goal of working around the patent while still keeping the boxes working, albeit with less functions.

The question is, do you must approve it first like approve any design around? Can you tell E* but for this software download you need no approval, as long as you promise that the DVR functions will be disabled?

Can E* insist the court review for approval anyway? Because they got into this big trouble for not getting approval last time, can you not give them the opportunnity this time so they are assured not to run into any problem?

So you spend another 6 months for a hearing and decision, find out well they still have DVR functions, but now they no longer infringe, are you going to approve it or not? If not, what is this inform and approval for?

If yes, all is good, right?


----------



## Syzygy

jacmyoung said:


> ... I don't understand why you said Judge Rader was wrong to point out E* had 15 engineers working 800 hours, that was a fact even TiVo did not dispute...


Please compare these quotes taken from the CAFC Decision pdf:


Syzygy said:


> Page 13 of the CAFC Decision pdf says "EchoStar argues that *it paid 15 engineers to spend 8000 hours on the redesign*, which took a year."





Syzygy said:


> Page 33 of the CAFC Decision pdf, in the middle of Judge Rader's dissent, says "*fifteen engineers working full time for over 800 total hours*."
> 
> This is, evidently, Judge Rader's own error (or that of one of his law clerks)...


Consistency check: 800 is a rather small number of hours to be apportioned among 15 engineers.


----------



## Maverickjoe

jacmyoung said:


> Of course it is, to disable the DVR functions you naturally no longer infringe, therefore whatever that software download is to achieve the goal of working around the patent while still keeping the boxes working, albeit with less functions.
> 
> The question is, do you must approve it first like approve any design around? Can you tell E* but for this software download you need no approval, as long as you promise that the DVR functions will be disabled?
> 
> Can E* insist the court review for approval anyway? Because they got into this big trouble for not getting approval last time, can you not give them the opportunnity this time so they are assured not to run into any problem?
> 
> So you spend another 6 months for a hearing and decision, find out well they still have DVR functions, but now they no longer infringe, are you going to approve it or not? If not, what is this inform and approval for?


Wow, you sold me on this idea. I hope Charlie's esteemed legal team reads this excellent idea. Of course, the downside is that Folsom isn't as amused with this mutiliation of the english language and trebles the $2.25 rate - which would means 6 months only costs Charlies about $47M per month, or another $283M. Let's do it!


----------



## Curtis52

Greg Bimson said:


> I believe this is a misinterpretation. A download to disable DVR functionality is not a download to workaround the claims of the Time Warp patent.


Yep. After the hard drive recording and playback is disabled it's not a DV*R* anymore. There is no *R*.


----------



## dfd

jacmyoung said:


> Of course it is, to disable the DVR functions you naturally no longer infringe, therefore whatever that software download is to achieve the goal of working around the patent while still keeping the boxes working, albeit with less functions.
> 
> The question is, do you must approve it first like approve any design around? Can you tell E* but for this software download you need no approval, as long as you promise that the DVR functions will be disabled?
> 
> Can E* insist the court review for approval anyway? Because they got into this big trouble for not getting approval last time, can you not give them the opportunnity this time so they are assured not to run into any problem?
> 
> So you spend another 6 months for a hearing and decision, find out well they still have DVR functions, but now they no longer infringe, are you going to approve it or not? If not, what is this inform and approval for?
> 
> If yes, all is good, right?


I'm pretty sure that niether Tivo nor Folsom would oppose E*'s complying with the injunction. E* could disable the DVRs by a software download or by making changes to their authorization database - no complaints either way.


----------



## Herdfan

Question on the _en banc _appeal.

Were the judges that heard this appeal the same ones that heard the last one?

If not, how likely would those judges who heard this case the last time be willing to vote to hear the _en banc _request knowing they already ruled against E* and that 2 more of their fellow judges just ruled against them again.


----------



## Curtis52

Herdfan said:


> If not, how likely would those judges who heard this case the last time be willing to vote to hear the _en banc _request knowing they already ruled against E* and that 2 more of their fellow judges just ruled against them again.


I don't see that it makes any difference. The issues in this case are completely different.


----------



## jacmyoung

Syzygy said:


> Please compare these quotes taken from the CAFC Decision pdf:
> 
> Consistency check: 800 is a rather small number of hours to be apportioned among 15 engineers.


I did not see that difference, typos or mistakes do happen, that is why you often see the appeals court later corrects them.


----------



## jacmyoung

dfd said:


> I'm pretty sure that niether Tivo nor Folsom would oppose E*'s complying with the injunction. E* could disable the DVRs by a software download or by making changes to their authorization database - no complaints either way.


The question is can TiVo and Judge Folsom refuse the review and approval process when the order said this needs to be done?

If they refuse to review it, E* does the download, later TiVo complains the DVR functions are still there somehow, can you again say E* ignored the order when in fact E* asked for approval to ensure they were following the order but you refused?


----------



## dfd

jacmyoung said:


> The question is can TiVo and Judge Folsom refuse the review and approval process when the order said this needs to be done?
> 
> If they refuse to review it, E* does the download, later TiVo complains the DVR functions are still there somehow, can you again say E* ignored the order when in fact E* asked for approval to ensure they were following the order but you refused?


My plain reading of the orders to E* is:

1. shut them off
2. when you think you've got something that isn't violating come to me and we'll talk


----------



## Lord Vader

Herdfan said:


> Question on the _en banc _appeal.
> 
> Were the judges that heard this appeal the same ones that heard the last one?
> 
> If not, how likely would those judges who heard this case the last time be willing to vote to hear the _en banc _request knowing they already ruled against E* and that 2 more of their fellow judges just ruled against them again.


This might answer your question:


> Statutory authority for in banc hearings is found in 28 U.S.C. § 46 (c). The proposed rule is responsive to the Supreme Court's view in Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), that litigants should be free to suggest that a particular case is appropriate for consideration by all the judges of a court of appeals. The rule is addressed to the procedure whereby a party may suggest the appropriateness of convening the court in banc. It does not affect the power of a court of appeals to initiate in banc hearings sua sponte. The provision that a vote will not be taken as a result of the suggestion of the party unless requested by a judge of the court in regular active service or by a judge who was a member of the panel that rendered a decision sought to be reheard is intended to make it clear that a suggestion of a party as such does not require any action by the court. See Western Pacific Ry. Corp. v. Western Pacific Ry. Co., supra, 345 U.S. at 262, 73 S.Ct. 656. The rule merely authorizes a suggestion, imposes a time limit on suggestions for rehearings in banc, and provides that suggestions will be directed to the judges of the court in regular active service. In practice, the suggestion of a party that a case be reheard in banc is frequently contained in a petition for rehearing, commonly styled "petition for rehearing in banc." Such a petition is in fact merely a petition for a rehearing, with a suggestion that the case be reheard in banc. Since no response to the suggestion, as distinguished from the petition for rehearing, is required, the panel which heard the case may quite properly dispose of the petition without reference to the suggestion. In such a case the fact that no response has been made to the suggestion does not affect the finality of the judgment or the issuance of the mandate, and the final sentence of the rule expressly so provides.


----------



## Tower Guy

dfd said:


> My plain reading of the orders to E* is:
> 
> 1. shut them off
> 2. when you think you've got something that isn't violating come to me and we'll talk


I agree with your assessment.

Meanwhile, there remains a third option; license the patent.


----------



## jacmyoung

dfd said:


> My plain reading of the orders to E* is:
> 
> 1. shut them off
> 2. when you think you've got something that isn't violating come to me and we'll talk


What if E* says yes we did, we also asked you to look at it but you did not care to look at it, can you complain if you insist they did not shut it off after all?

In Judge Folsom's opinion, he raised very specific points why E* failed in their design around.

For one thing, E* did not raise any claim element issues other than the "parse" element. As Judge Folsom put it, since E* did not assert that anything else was different with respect to the claim elements, that was it, he did not have to address them.

Secondly, he said even if E* had made the software non-infringing, since the hardware did not change, and since E* argued both have to be considered together, therefore non-infringing software alone did not cut it.

The above are the most critical elements E* failed according to Judge Folsom. While I disagree, but suppose E* takes his positions, and make the attempt to cure such deficiencies, for examples:

We already know E* raised additional claim element issues during the appeal, they just did not provide facts in a hearing where the experts got to verify them, so that can be cured.

On the hardware change, we also know that E* managed to disable part of the Broadcom chip, but did not physically change anything. But who is to say they cannot issue a software command to raise the voltage on a part of the relevant hardware to physically alter it? Say turning it from black to brown? Maybe E* can even bring the DVR into the courtroom and do it in front of Judge Folsom, and allow him to use his sense of olfactory to verify it too.

Wouldn't that convince Judge Folsom that they have cured the critical deficiencies Judge Folsom pointed out in his opinion?

But if you refuse to even let E* present their new facts, refuse to review them and decide whether to approve it or not, when in fact your own order says you should do, can you then come back later to complain after E* downloads that new software?


----------



## dfd

jacmyoung said:


> What if E* says yes we did, we also asked you to look at it but you did not care to look at it, can you complain if you insist they did not shut it off after all?
> 
> In Judge Folsom's opinion, he raised very specific points why E* failed in their design around.
> 
> For one thing, E* did not raise any claim element issues other than the "parse" element. As Judge Folsom put it, since E* did not assert that anything else was different with respect to the claim elements, that was it, he did not have to address them.
> 
> Secondly, he said even if E* had made the software non-infringing, since the hardware did not change, and since E* argued both have to be considered together, therefore non-infringing software alone did not cut it.
> 
> The above are the most critical elements E* failed according to Judge Folsom. While I disagree, but suppose E* takes his positions, and make the attempt to cure such deficiencies, for examples:
> 
> We already know E* raised additional claim element issues during the appeal, they just did not provide facts in a hearing where the experts got to verify them, so that can be cured.
> 
> On the hardware change, we also know that E* managed to disable part of the Broadcom chip, but did not physically change anything. But who is to say they cannot issue a software command to raise the voltage on a part of the relevant hardware to physically alter it? Say turning it from black to brown? Maybe E* can even bring the DVR into the courtroom and do it in front of Judge Folsom, and allow him to use his sense of olfactory to verify it too.
> 
> Wouldn't that convince Judge Folsom that they have cured the critical deficiencies Judge Folsom pointed out in his opinion?
> 
> But if you refuse to even let E* present their new facts, refuse to review them and decide whether to approve it or not, when in fact your own order says you should do, can you then come back later to complain after E* downloads that new software?


E* was cute in the past. I don't think the court liked that and that is why they were found in contempt.

I think that when they are disabled everyone will be able to tell - they won't be functioning as DVRs.

After that, and only after that, will E* be allowed to spool court approved software.


----------



## jacmyoung

dfd said:


> E* was cute in the past. I don't think the court liked that and that is why they were found in contempt.
> 
> I think that when they are disabled everyone will be able to tell - they won't be functioning as DVRs.
> 
> After that, and only after that, will E* be allowed to spool court approved software.


I guess it is your prediction that if E* files their review request with claims similar to what I said (not saying they will but it seems they plan to), Judge Folsom will deny such request for review.

Then E* goes ahead download it anyway, should the same process begin? Because it was very clear E* did not disable any DVR functions last time, but the judge did go through his hearing and review you know, not because the DVR functions were disabled or not, rather if the new design was legit or not.

Why should he treat another new design differently? He never said E* cannot design around, just that E* needs to inform and obtain approval for any further design around, which makes a court review necessary.


----------



## dfd

jacmyoung said:


> I guess it is your prediction that if E* files their review request with claims similar to what I said (not saying they will but it seems they plan to), Judge Folsom will deny such request for review.


No.

I am saying they will file for and get their review but they won't be allowed to spool the s/w until the review concludes that the new s/w is more than colorably different.

And, all of this takes place after they have demonstrated that the DVRs have been disabled - no longer in contempt.


----------



## Greg Bimson

I simply believe that whatever actions may be pending in front of Judge Folsom, that the moment the stay is lifted and the injunction becomes active those receivers better have their functionality disabled.

If I am not mistaken, the Court of Appeals basically sided with Judge Folsom, and this time if TiVo requests a finding of contempt for failure to disable, then any of the other outside arguments would no longer apply. The simple "are the units functionally disabled, yes or no" question is now all it takes.


----------



## FarmerBob

An interesting article posted yesterday.

Court Sees DVR Case TiVo's Way


----------



## jacmyoung

Greg Bimson said:


> I simply believe that whatever actions may be pending in front of Judge Folsom, that the moment the stay is lifted and the injunction becomes active those receivers better have their functionality disabled.
> 
> If I am not mistaken, the Court of Appeals basically sided with Judge Folsom, and this time if TiVo requests a finding of contempt for failure to disable, then any of the other outside arguments would no longer apply. The simple "are the units functionally disabled, yes or no" question is now all it takes.


Then another contempt proceeding will resume. Judge Folsom will have to follow the same procedure as it happened last time. There is really no other legal procedure to avoid any steps in the previous proceeding, as long as it is another one of those contempt proceedings. He may not like it, but if he later finds that E* does cure the several deficiencies based on his last opinion, i.e. the new design no longer infringe, both software and hardware had changed, what should he do?


----------



## Curtis52

Dish will have to stop recording and playback on the DVRs within 30 days of the mandate.

There is no way approval of new software can happen before then. That effectively drives chronology as to sequence.

As far as approval of the new software goes if Dish still wants to pursue it for the millions of (by then) dead DVRs sitting in landfills, Folsom will first ask TiVo if they agree that the new software no longer infringes. TiVo will say that the new software infringes. Bingo. That's the threshold controversy requiring Dish to file a declaratory lawsuit. Folsom wouldn't consider approving a workaround until the declaratory lawsuit and the obligatory appeals are resolved. I'd give it three years minimum. Meanwhile, the DVRs in the landfill are becoming less and less salvageable.


----------



## scooper

Curtis52 said:


> Dish will have to stop recording and playback on the DVRs within 30 days of the mandate.
> 
> There is no way approval of new software can happen before then. That effectively drives chronology as to sequence.
> 
> As far as approval of the new software goes if Dish still wants to pursue it for the millions of (by then) dead DVRs sitting in landfills, Folsom will first ask TiVo if they agree that the new software no longer infringes. TiVo will say that the new software infringes. Bingo. That's the threshold controversy requiring Dish to file a declaratory lawsuit. Folsom wouldn't consider approving a workaround until the declaratory lawsuit and the obligatory appeals are resolved. I'd give it three years minimum. Meanwhile, the DVRs in the landfill are becoming less and less salvageable.


In 3 years all of the infringing units will no longer be in service.

So unless Tivo files immediately for the newer models, what's going to be the point of this suit, assuming 3 years ?


----------



## jacmyoung

Curtis52 said:


> Dish will have to stop recording and playback on the DVRs within 30 days of the mandate.
> 
> There is no way approval of new software can happen before then. That effectively drives chronology as to sequence.
> 
> As far as approval of the new software goes if Dish still wants to pursue it for the millions of (by then) dead DVRs sitting in landfills, Folsom will first ask TiVo if they agree that the new software no longer infringes. TiVo will say that the new software infringes. Bingo. That's the threshold controversy requiring Dish to file a declaratory lawsuit. Folsom wouldn't consider approving a workaround until the declaratory lawsuit and the obligatory appeals are resolved. I'd give it three years minimum. Meanwhile, the DVRs in the landfill are becoming less and less salvageable.


Curtis you know better than anyone that is not how a contempt proceeding works in a patent case. As long as there is modification of the products, the court must go through colorable difference and infringement analyses to determine if the modified products are more than colorably different and/or still infringe.

After that if Judge Folsom agrees with E* the newly modified DVRs no longer infringe, as I laid out earlier, it should be over. But let me accept the other side's position, Judge Folsom still finds E*'s action a violation, what kind of options does he have?

There are only two options available to him (correct me if I am wrong dgordo), both in the forms of sanctions. One form of sanction is based on the damages, he can either double or triple the damage amount as sanctions. But if the DVRs no longer infringe, there cannot be damages, therefore sanctions based on damages is no longer an option.

The other option is attorney fees and costs. We know the cost of such was $5.8M last time, assume the same cost will incur, that will be the award he can give TiVo for E*'s violation.

After that the case is pretty much over. Am I correct or not? Because he can no longer issue any injunction. Injunction can only be imposed on products that infringe, not products that do not infringe.

TiVo may continue in that new jury trial, but this case is over.


----------



## Curtis52

scooper said:


> In 3 years all of the infringing units will no longer be in service.
> 
> So unless Tivo files immediately for the newer models, what's going to be the point of this suit, assuming 3 years ?


I guess I'm not understanding the question. The infringing units will have to be out of service in just a few days of the mandate not 3 years. That includes the newer models too that Dish knows full well are infringing since they use the same software.


----------



## phrelin

Hmmm. Well, since Dish has already spooled the software changes that are more than colorably different (Dish says) I think all they have to do is send out the new model number stickers and everything is ok.


----------



## jacmyoung

phrelin said:


> Hmmm. Well, since Dish has already spooled the software changes that are more than colorably different (Dish says) I think all they have to do is send out the new model number stickers and everything is ok.


I still like this idea better to beam down from the spacecraft causing a tiny piece of chip to fry It is quick and dirty.

Then motion the judge for another review, presenting all the new changes they had already argued during the appeal for fact-finding purpose, which would be what another hearing would do.


----------



## dfd

jacmyoung said:


> Curtis you know better than anyone that is not how a contempt proceeding works in a patent case. As long as there is modification of the products, the court must go through colorable difference and infringement analyses to determine if the modified products are more than colorably different and/or still infringe.
> 
> After that if Judge Folsom agrees with E* the newly modified DVRs no longer infringe, as I laid out earlier, it should be over. But let me accept the other side's position, Judge Folsom still finds E*'s action a violation, what kind of options does he have?
> 
> There are only two options available to him (correct me if I am wrong dgordo), both in the forms of sanctions. One form of sanction is based on the damages, he can either double or triple the damage amount as sanctions. But if the DVRs no longer infringe, there cannot be damages, therefore sanctions based on damages is no longer an option.
> 
> The other option is attorney fees and costs. We know the cost of such was $5.8M last time, assume the same cost will incur, that will be the award he can give TiVo for E*'s violation.
> 
> After that the case is pretty much over. Am I correct or not? Because he can no longer issue any injunction. Injunction can only be imposed on products that infringe, not products that do not infringe.
> 
> TiVo may continue in that new jury trial, but this case is over.


You think fines are the only penalty the judge can impose?

I don't.

I'm thinking if E* goes that route James' prediction from yrars ago will come true, "armed marshalls".


----------



## jacmyoung

dfd said:


> You think fines are the only penalty the judge can impose?
> 
> I don't.
> 
> I'm thinking if E* goes that route James' prediction from yrars ago will come true, "armed marshalls".


Who knows, maybe Charlie wouldn't mind staying in a full service jail for a few days if he can stick it to TiVo


----------



## Kheldar

jacmyoung said:


> Who knows, maybe Charlie wouldn't mind staying in a full service jail for a few days if he can stick it to TiVo


Especially if the jail has DishNet with DVRs in the cell? :sure:


----------



## dfd

jacmyoung said:


> Who knows, maybe Charlie wouldn't mind staying in a full service jail for a few days if he can stick it to TiVo


I wouldn't want to be trying to sticking it to somebody if I was in jail - not that there's anything wrong with that.


----------



## jacmyoung

Kheldar said:


> Especially if the jail has DishNet with DVRs in the cell? :sure:


I am sure TiVo will motion the judge to put a TiVo in there instead


----------



## jacmyoung

dfd said:


> I wouldn't want to be trying to sticking it to somebody if I was in jail - not that there's anything wrong with that.


You mean if Rogers is more than happy to visit? Ok we should stop here.


----------



## phrelin

phrelin said:


> So to talk about it. The "Infringing Products" include the 501, 508, 510, 522, 625, 721, 921 and the 942.
> 
> Since Dish has to have fully depreciated these units by now and as of February 1 is charging the same for them as corresponding ViP units, they've got it covered more or less. They can pay TiVo a licensing fee from the revenue stream.
> 
> For instance, except for the first DVR which is technically free even though at that point you have to pay a $6/mo DVR service fee), Dish charges the same for a solo DVR ($10 a month) whether it's a PVR508 (SD that can record one program) or a ViP612 (HD that can record two programs from the satellite and one OTA).
> 
> But, like I say, the case isn't over yet. So we can pretend Charlie hasn't already figured out what to do if he loses.


I posted this over in the thread TIVO Law Suite _(sic)_ thread so we can keep multiplying the post count until it gets combined with this thread.


----------



## Jhon69

The following was sent overnight to DISH Network retailers.

Quote:
We are disappointed in the Federal Circuit's split decision, but are pleased that Judge Rader agreed with our position.
Therefore, we will be seeking en banc review by the full Federal Circuit. We also will be proposing a new design-around
to the district court for approval.

Please don't necessarily believe what our competitors may be saying to you about the decision. Our competitors have
made inaccurate representations in the past and may do so again now. At this time, our DVR customers are not
impacted, and you can continue selling and servicing DVRs for new and existing customers.


----------



## phrelin

Yeah, I saw that earlier. My point was they won't be impacted. As of February 1 Dish is collecting more than enough off of the old boxes to pay the license fee to TiVo if it ends up that they lose after all the appeals and procedural issues etc.


----------



## Herdfan

phrelin said:


> Dish is collecting more than enough off of the old boxes to pay the license fee to TiVo


That makes the assumption that after all this that TiVo is willing to license its technology.

By the time this is over, TiVo may have collected nearly half a billion dollars from DISH. So they have gotten their pound of flesh from DISH.

So lets take this a bit further. TiVo refuses to license their technology makes DISH shut off the boxes. The next company TiVo goes after might just be more willing to settle quickly knowing that if they force TiVo into a long protracted suit, TiVo may refuse to license the tech at the end.


----------



## HobbyTalk

Herdfan said:


> That makes the assumption that after all this that TiVo is willing to license its technology.
> 
> By the time this is over, TiVo may have collected nearly half a billion dollars from DISH. So they have gotten their pound of flesh from DISH.
> 
> So lets take this a bit further. TiVo refuses to license their technology makes DISH shut off the boxes. The next company TiVo goes after might just be more willing to settle quickly knowing that if they force TiVo into a long protracted suit, TiVo may refuse to license the tech at the end.


So maybe the question is that if TiVo refuses to license or negotiates in bad faith, could E* sue and get an injunction not to turn off the DVRs for anti competitive behavior (or any other reason)? Yes, there are sections in the Patent Act that address this.


----------



## dfd

HobbyTalk said:


> So maybe the question is that if TiVo refuses to license or negotiates in bad faith, could E* sue and get an injunction not to turn off the DVRs for anti competitive behavior (or any other reason)? Yes, there are sections in the Patent Act that address this.


Can you cite a case outside of standards setting orginizations?


----------



## HobbyTalk

No, I have not looked. You can


----------



## jacmyoung

HobbyTalk said:


> No, I have not looked. You can


TiVo cannot negotiate in bad faith, but they can certainly refuse to license. Regardless, Charlie seems determined to fight on, so I think it is fair to say we can try to work on that other aspect of entertainment if there is any creditable rumor that licensing is happening.

Just like the VIP922 rumor you know


----------



## dfd

HobbyTalk said:


> No, I have not looked. You can


Looking at http://en.wikipedia.org/wiki/Compulsory_license I cannot see how a Tivo can be forced to license.

I'm not trying to be a smart-a$$ just want to know if there are real worl cases.


----------



## jadebox

dfd said:


> I'm not trying to be a smart-a$$ just want to know if there are real world cases.


It happens. In 1950-something AT&T was forced to license all of its Bell Labs patents. Then, in the 1980s, AT&T was again forced to license its patents to others. I'm sure there are many other, less spectacular, examples. But, those are ones that came to mind.

-- Roger


----------



## Greg Bimson

jacmyoung said:


> Curtis you know better than anyone that is not how a contempt proceeding works in a patent case. As long as there is modification of the products, the court must go through colorable difference and infringement analyses to determine if the modified products are more than colorably different and/or still infringe.


Uh, I hate to be the spoil-sport, but I believe there is now case law that demonstrates a review of modifications is not required for finding contempt of the injunction.


jacmyoung said:


> TiVo cannot negotiate in bad faith, but they can certainly refuse to license.


What? This doesn't make any sense. The moment TiVo entertains a possible settlement from DISH/SATS, that makes it a negotiation. Then DISH/SATS can complain that TiVo is offering a bad faith negotiation.

This isn't making any sense.


----------



## HobbyTalk

dfd said:


> Looking at http://en.wikipedia.org/wiki/Compulsory_license I cannot see how a Tivo can be forced to license.
> 
> I'm not trying to be a smart-a$$ just want to know if there are real worl cases.


I don't know either, that is why I was asking.


----------



## jacmyoung

Greg Bimson said:


> Uh, I hate to be the spoil-sport, but I believe there is now case law that demonstrates a review of modifications is not required for finding contempt of the injunction.


Two things, first this case does not demonstrate a review of modification is not required in a contempt proceeding in a patent case, because while it was clear from the beginning DVR functions were not disabled, nevertheless the district court was compelled to conduct the review of the modification.

Second but the more important one is, I think a lot of us missed it but Judge Rader caught it. When Judge Folsom said even if the new software was not infringing, since the hardware did not change, it still would not matter.

I think that was why Judge Rader went to length to explain why TiVo cannot insist that E* must also change the hardware in order to meet the requirement, because TiVo said clearly back then, and the district court agreed too, that for the DVRs already in the end users' hands, the hardware needed not changed, only the software.

But as I explained earlier even if Judge Rader's point fails on en banc review, what if E* can actually physically change the hardware through a software download? I used a more graphical example just for fun, but there could be other ways to physically alter the hardware.

The point is, Judge Folsom in reality did not say he needed not to review the modification in order to cite a violation, even though it had appeared to us that way. It took Judge Rader, a seasoned patent judge to see the difference. Again Judge Folsom did not say even if the *DVRs* were no longer infringing&#8230;rather even if the *software* was non-infringing, since the hardware did not change&#8230;

So the question of the day is, how many engineers does it take to change the hardware?



> What? This doesn't make any sense. The moment TiVo entertains a possible settlement from DISH/SATS, that makes it a negotiation. Then DISH/SATS can complain that TiVo is offering a bad faith negotiation.
> 
> This isn't making any sense.


Sorry, come again?


----------



## Greg Bimson

jacmyoung said:


> Two things, first this case does not demonstrate a review of modification is not required in a contempt proceeding in a patent case, because while it was clear from the beginning DVR functions were not disabled, nevertheless the district court was compelled to conduct the review of the modification.


Just because Judge Folsom evaluated infringement does not mean it was needed to determine contempt regarding the "disable" order. One must look at the decision in order to understand that point:

When the decision was rendered, Judge Folsom found that even if the modifications were not infringing, DISH/SATS would have been found in contempt for failure to disable the functionality as ordered. That decision was upheld by the Court of Appeals.

There is no need to adjudge infringement in a contempt proceeding where an order requiring one specific action is not followed. The decision from the Court of Appeals agrees: failure to comply with an order is contempt. No discussion of infringement is required, unless devices are accused of infringement against an order against infringements.


jacmyoung said:


> Again Judge Folsom did not say even if the DVRs were no longer infringing&#8230;rather even if the software was non-infringing, since the hardware did not change&#8230;


Judge Folsom never mentioned that "the hardware did not change". You might want to re-read that again.


----------



## jacmyoung

> EchoStar argues that it complied with this
> Court's order when it downloaded new software into the infringing receivers, thus disabling their
> infringing DVR functionality. This Court's order, however, was not limited to infringing software;
> rather the infringing receivers in their entirety were subject to the order. Indeed, although claims 31
> and 61 have been referred to as the "Software Claims" they actually cover a process and apparatus
> that may also contain hardware elements. See TiVo, 516 F.3d at 1309 ("[T]he hardware/software
> distinction made by EchoStar is unhelpful. What matters is whether the operations performed by
> the interaction of software and hardware in the accused DVRs, taken as a whole, are covered by the
> claim term.").


The above quote clearly indicates Judge Folsom's insistence that software alone just wouldn't do it, it had to be the combination of the software and hardware that mattered. Judge Rader disputed that.

BTW, E* just motioned Judge Folsom today for a pre-approval of a new design around, we will see how it goes.

I would want to know when Judge Folsom will plan to do the pre-approval review. I am sure E* is urging him to do so ASAP, because if the court delays the process, then later comes back and try to punish E* for supposed continued infringement, whose fault would that be?


----------



## Greg Bimson

Greg Bimson said:


> ...When the decision was rendered, Judge Folsom found that even if the modifications were not infringing, DISH/SATS would have been found in contempt for failure to disable the functionality as ordered. That decision was upheld by the Court of Appeals.





jacmyoung said:


> Who said that?


The Court of Appeals...


> The dissent argues that it would be completely improper for the district court to find EchoStar in contempt of the disablement provision if the modified technology was outside the scope of the asserted claims. While it is true that infringement is generally essential for a violation of an injunction against infringement, KSM, 776 F.2d at 1528, it is also settled law that as long as EchoStar had explicit notice of what it had been ordered to do and had refused to do so, the court possessed broad equitable powers to enforce its decree. See Abbott, 503 F.3d at 1383; see also KSM, 776 F.2d at 1524 ("A civil contempt proceeding for violation of an injunction issued after patent litigation, while primarily for the benefit of the patent owner, nevertheless, involves also the concept of an affront to the court for failure to obey its order.").





> In reading the disablement provision as applying only to infringing DVR software, the dissent relies on the fact that TiVo acknowledged to the district court that EchoStar could reprogram receiver software at its existing placements to disable the DVR component within those receivers via satellite. We find the manner in which the disablement could be accomplished irrelevant to the issue at hand. TiVo never conceded to the district court that EchoStar should be allowed to replace the infringing DVR software component (in its then-adjudged infringing hardware) with a potentially noninfringing software component either via satellite or otherwise. We find that EchoStar had ample notice of what it had been ordered to do. Further, by adding a separate provision on disablement and specifically defining what it meant by "DVR functionality" in its order, the district court made its expectations sufficiently clear, and more importantly fulfilled the requirements of Rule 65(d).


The Court of Appeals upheld that the violation of the disable order is indeed contempt. There wasn't any reference to the need for an evaluation of infringement, only to comply with the order.


jacmyoung said:


> I can go back and quote what Judge Folsom said in his 6/2/10 opinion, but before I waste my time, why don't we ask Curtis about this? He read the order too.


I read the order, too.  And I've wasted my time over these years, although it appears I've had it right all along...


----------



## Greg Bimson

jacmyoung said:


> The above quote clearly indicates Judge Folsom's insistence that software alone just wouldn't do it, it had to be the combination of the software and hardware that mattered. Judge Rader disputed that.





> EchoStar argues that it complied with this Court's order when it downloaded new software into the infringing receivers, thus disabling their infringing DVR functionality. This Court's order, however, was not limited to infringing software; rather the infringing receivers in their entirety were subject to the order.


No, Judge Folsom is simply stating the order forces the DVR functionality on the listed receivers to be disabled, simply because that is what the order states.

Judge Rader's opinion is in the belief "logic" dictated that because the receivers were changed and the injunction was vague that the fallback interpretation of a vague injunction (only infringing activity could be enjoined) should have been used. It should also be noted that was a dissenting opinion and the affirming opinion completely agreed with Judge Folsom.

If when the injunction becomes active DISH/SATS does not disable their listed receivers, TiVo will again file a contempt motion just like last time. The difference is that TiVo will not need to address a modification, as "it is also settled law that as long as EchoStar had explicit notice of what it had been ordered to do and had refused to do so, the court possessed broad equitable powers to enforce its decree."


----------



## jacmyoung

Greg Bimson said:


> The Court of Appeals...
> The Court of Appeals upheld that the violation of the disable order is indeed contempt. There wasn't any reference to the need for an evaluation of infringement, only to comply with the order.I read the order, too.  And I've wasted my time over these years, although it appears I've had it right all along...


I will have to accept what you said, although Judge Rader completely disagreed.

Now that E*'s motion is filed, I want to know what Judge Folsom will do. How fast can he do the review? What if he is booked solid 3 months from now therefore has to delay the review by a few months? Can he then come back and assess any damages for the delayed period when supposedly the infringement continued? That is if he eventually finds the new design non-infringing and approves it.

How long does the en banc filing last? According to dgordo, 1 to 3 months? How long does E* have to file such request? We haven't seen E* actually filing for en banc review yet, so let's assume E* is waiting for the last minute to file the request to buy them time, hoping at least for a review, which could take another 6 months?

Even if in the end the mandate is issued, this pre-approval, if Judge Folsom has the time to do it, will have concluded by then. If Judge Folsom eventually finds that this new design no longer infringes and approves it, then it is over correct? Because by the time this injunction is reinstated, E* will have Judge Folsom's blessing already, i.e. no violation, no infringement?

So again the question is, can Judge Folsom delay the review? If so how long? And can he come back later to assess any damage and/or sanction if the violation and infringement are the result of court delay in reviewing and approving the new design?


----------



## Greg Bimson

jacmyoung said:


> Now that E*'s motion is filed, I want to know what Judge Folsom will do. How fast can he do the review? What if he is booked solid 3 months from now therefore has to delay the review by a few months? Can he then come back and assess any damages for the delayed period when supposedly the infringement continued? That is if he eventually finds the new design non-infringing and approves it.


This is one of those aggregate questions, where each would need to be dissected...

Technically, there is no "inform and approve" regarding workarounds, as the injunction is stayed. The problem becomes when the injunction becomes active.

In order to attempt to limit the continuing damages for infringement, therefore, DISH/SATS could download their "Workaround 2.0" right now. That should cause the damages clock to stop while the "Workaround 2.0" is evaluated. Of course, the risk here is once the injunction becomes active, it is expected the enumerated receivers subject to the the "disable" order have their DVR functionality removed.

Of course, we can always go back to that "license the patent" stuff, and this is all over.


----------



## jacmyoung

Greg Bimson said:


> ...In order to attempt to limit the continuing damages for infringement, therefore, DISH/SATS could download their "Workaround 2.0" right now.


No they cannot, because the injunction said you must inform and obtain approval *before* you may implement (i.e. download it to the DVRs) it. That is the whole problem with this inform and approval thing. If the court has no time to do the review and approval, yet E* cannot implement it, the court will have forced E* to continue the supposed infringement.



> Of course, we can always go back to that "license the patent" stuff, and this is all over.


Of course we can if necessary later, but first thing first.


----------



## Curtis52

I'm guessing TiVo will file a contempt motion for the ViP models soon.


----------



## jacmyoung

Curtis52 said:


> I'm guessing TiVo will file a contempt motion for the ViP models soon.


Before this past contempt issue is even concluded? Just we all on the same page, whether E* was indeed in violation, or infringing, technically has not been concluded yet, not until the mandate is issued. I don't even know if an appeal to the Supreme Court will further delay it or not, that can be another 6 months or more.


----------



## Greg Bimson

More aggregated statements needing separation and clarification:


jacmyoung said:


> No they cannot, because the injunction said you must inform and obtain approval before you may implement (i.e. download it to the DVRs) it.


So the injunction is already active? If yes, then "inform and approval" is required. If no, then what?


jacmyoung said:


> That is the whole problem with this inform and approval thing. If the court has no time to do the review and approval, yet E* cannot implement it, the court will have forced E* to continue the supposed infringement.


The infringement can be stopped immediately by disabling the hard drive immediately. It's in the injunction, why haven't the DVR's had their functionality disabled? Because it's stayed.

One does not have to adhere to a stayed injunction. Therefore, the "inform and approve" provision does not have to be followed. Only when the injunction is active would that be required.


----------



## Herdfan

jacmyoung said:


> If the court has no time to do the review and approval, yet E* cannot implement it, the court will have forced E* to continue the supposed infringement.


I thought E* was supposed to have shut them off, which actually ends the infringement.


----------



## jacmyoung

Greg Bimson said:


> ...One does not have to adhere to a stayed injunction. Therefore, the "inform and approve" provision does not have to be followed. Only when the injunction is active would that be required.


The problem is, when the injunction is stayed, any possible violation of the injunction cannot happen, but continued infringement still can be assessed damages later, should the mandate be issued later, yes even for the stay period. That is why you cannot deny E*'s opportunity to avoid infringement during the stay period, while it is not necessary for E* to disable the DVR functions in the same period.

If I may revisit the issue I raised yesterday, without falling back to the "jail time" and "jail pleasure" jokes. If in the end Judge Folsom finds that the 2nd design around is non-infringing, and approves it, there cannot be damages assessed anymore, therefore sanctions based on damages cannot happen. The only sanctions he can assess will be the attorney fees and costs, in the low ten to twenty millions, instead of hundreds of millions.


----------



## jacmyoung

Herdfan said:


> I thought E* was supposed to have shut them off, which actually ends the infringement.


Currently there is no standing injunction that E* must follow, the injunction is stayed.

What is always standing issue is the infringement, as long as it still exists, there will be consequences later, injunction stayed or not.


----------



## Curtis52

Herdfan said:


> I thought E* was supposed to have shut them off, which actually ends the infringement.


Yep. Dish is free to disable the DVRs any time they want to. Well, no later than 30 days after the mandate.


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## jacmyoung

Maybe Judge Folsom can say, in light of the current situation, E* you are allowed to implement the 2nd new design without my review and approval. If the injunction is reinstated later, we will resume our business?

If so then the end result will not be so different if eventually he approves the 2nd design around, except that he will not be able to even say E* had violated his injunction, because he in effect had allowed it.

But Judge Folsom has to respond, he can’t just ignore this motion.


----------



## jacmyoung

Curtis52 said:


> Yep. Dish is free to disable the DVRs any time they want to. Well, no later than 30 days after the mandate.


Depending on how you say it. E* does not have to disable the DVR functions at all right now. But they will have to disable the DVR functions within 30 days of the mandate issuance, if such mandate should issue, which can be 3 months from now, or one year from now.

Here is another thing, if Judge Folsom says he has no time to do the review, therefore E* can implement the 2nd new design now without approval, even if he later finds infringement on the 2nd new design, he will have problem punishing E*, because it was he who said E* could implement this infringing software without approval.


----------



## dfd

jacmyoung said:


> Here is another thing, if Judge Folsom says he has no time to do the review, therefore E* can implement the 2nd new design now without approval...


I'd put the odds of that at somewhere between slim and none.

Do you really think a judge that has already found a party in contempt is just going to let it slide?

All of a sudden the slow grinding wheels of justice should be accelerated to protect E* on the chance that they developed a non-infringing work-around? Where was your concern for the party that proved infringement twice?


----------



## jacmyoung

dfd said:


> I'd put the odds of that at somewhere between slim and none.
> 
> Do you really think a judge that has already found a party in contempt is just going to let it slide?
> 
> All of a sudden the slow grinding wheels of justice should be accelerated to protect E* on the chance that they developed a non-infringing work-around? Where was your concern for the party that proved infringement twice?


Not to protect E*, rather protect TiVo's patent from being infringed on. At this time, Judge Folsom cannot force E* to disable the DVR funtions as means to stop infringement, don't blame E*, blame the appeals court. While he blames the appeals court, he still has the duty as the officer of the court to ensure infringement must stop, whithout disabling the DVR functions.

He can either agree to review it, but if he does not, he needs to tell E* what E* can do, can E* implement it, or not? If he says no, E* you may not implement it, he will in effect have forced E* to continue to infringe. Do you want to see how that may unfold? If he says yes E* you may implement it, can you later blame E* for implementing it? I don't know if there is a third option, maybe you can tell us?

If he delays the review due to whatever the reason, he cannot then blame E* for the continued infringement during the delay, because had he not insisted on informing and obtaining approval, E* could have taken the steps to stop the infringement without the delay.

We should find out soon how Judge Folsom will handle this.


----------



## Curtis52

dfd said:


> All of a sudden the slow grinding wheels of justice should be accelerated to protect E* on the chance that they developed a non-infringing work-around? Where was your concern for the party that proved infringement twice?


If Dish is in a hurry to end infringement they can just stop recording and playback. Problem solved. There is no emergency.


----------



## jacmyoung

Curtis52 said:


> If Dish is in a hurry to end infringement they can just stop recording and playback. Problem solved. There is no emergency.


E* is in a hurry to end the supposed infringement, they are just not in any hurry to disable the DVR functions because there is no effective court order asking them to do so.

Of course Judge Folsom can say since you are not in any hurry to disable the DVR functions, I am not in any hurry to follow my own order to review and approve while the order is not effective.

E* then downloads the new software. If en banc review fails, the mandate issues, parties will go back to ressume another contempt proceeding, TiVo will argue that E* still did not follow the court order, E* can also argue but Judge Folsom did not follow his own order either, he did exactly what E* did, he copied E*. If Judge Folsom follows E*'s own approach, then E*'s approach must be a reasonable one.

Two wrongs do not make a right.


----------



## Herdfan

jacmyoung said:


> E* is in a hurry to end the supposed infringement, they are just not in any hurry to disable the DVR functions because there is no effective court order asking them to do so.


Ok, he keep mentioning this. When will the stay on the enforcement be lifted?


----------



## jacmyoung

Herdfan said:


> Ok, he keep mentioning this. When will the stay on the enforcement be lifted?


If the enforement will be mandated, according to dgordo, and if we consider the last review in 2007, 3 months from now at the earliest.

This time however the decision is a split one, with the dissenting opinion squarely on the side of the losing party, there is a good chance the en banc review may be granted, if so it can be 6 months or a year, that is if in the end the mandate is issued.

E* can then go to the Supreme Court while the money sits in the escrow account. Although once the mandate is issued, parties will be back in court to argue again.


----------



## Greg Bimson

jacmyoung said:


> E* then downloads the new software. If en banc review fails, the mandate issues, parties will go back to ressume another contempt proceeding, TiVo will argue that E* still did not follow the court order, E* can also argue but Judge Folsom did not follow his own order either, he did exactly what E* did, he copied E*. If Judge Folsom follows E*'s own approach, then E*'s approach must be a reasonable one.
> 
> Two wrongs do not make a right.


First, there is nothing within the order that Judge Folsom must follow.

I think you are making a bigger deal out of this than it is supposed to be...

There is currently no order to be followed. When those orders become active, that is when they must be followed. Therefore, DISH/SATS can download their workaround now, without even possibly being in contempt of an unenforceable order.

DISH/SATS, according to multiple sources, has a workaround they'd like the court to review. The review will take place on a normal court schedule. Therefore, if the review cannot take place by the time the injunction becomes fully effective, it is expected that DISH/SATS disable their DVR's until such time the court approves the modifications.

Just because DISH/SATS may not like the scheduled docket to approve their modifications doesn't change the fact that they still need to follow the orders set forth within the injunction, once effective. DISH/SATS is in this bind now because they didn't follow the orders as set forth in the prior injunction, once effective.


----------



## jacmyoung

Greg Bimson said:


> ...Just because DISH/SATS may not like the scheduled docket to approve their modifications ...


Did you see the scheduled docket already? If so where? And Please cite for us where you learned E* does not like the schedule?

I am trying to speculate all possible scenarios based on Judge Folsom's possible responses. The only one you proposed is Judge Folsom will take the usual course, which may or may not happen before or after the mandate is issued, if it should be issued.

Therefore taking your own scenario, if later Judge Folsom finds no more infringement and approves it, he will have problem assessing damages for the period from E*'s motion filing, to the eventual approval, because had E* not required to seek approval, E* could have downloaded the new design from the time it asked for the review and avoided infringement.

Now as I said without infringement, there are no damages, the sanctions can only be based on the award of attorney fees and costs. There is nothing above that E* will not like to see, the question is, will TiVo like to see that?


----------



## Curtis52

Since it has already been established that it doesn't matter whether the named models infringe or not as far as the disablement order is concerned it doesn't matter whether approval is ever granted on workaround software for the named models.


----------



## jacmyoung

Curtis52 said:


> Since it has already been established that it doesn't matter whether the named models infringe or not as far as the disablement order is concerned it doesn't matter whether approval is ever granted on workaround software for the named models.


Unless you contend Judge Folsom will never have to review and approve it, which I hope not, otherwise if eventually he finds no infringement, he will have to approve it, correct? At that point at most he will award TiVo the attorney fees and costs as sanction against any violation, and call to the end of this litigation, correct?

I am not saying my above statement must be correct, I am no lawyer, correct me if I am wrong.


----------



## jacmyoung

Yesterday when I checked the court Pacer site, E* filed a single entry requesting court pre-approval, I speculated E* would urge the court to review and approve ASAP.

Today checking the site again, there are several more entries, some correcting the previous documents, but one of them was added to seek expedited review for pre-approval.

All docs are sealed.


----------



## dfd

jacmyoung said:


> Yesterday when I checked the court Pacer site, E* filed a single entry requesting court pre-approval, I speculated E* would urge the court to review and approve ASAP.
> 
> Today checking the site again, there are several more entries, some correcting the previous documents, but one of them was added to seek expedited review for pre-approval.
> 
> All docs are sealed.


Wasn't this contempt appeal expedited? How many months did that take?

I would assume that there would be a discovery phase of this review, a hearing, and then an appeal by the losing party.

While it may be expedited it won't be quick is my guess.


----------



## Curtis52

dfd said:


> I would assume that there would be a discovery phase of this review, a hearing, and then an appeal by the losing party.


... and there is no guarantee that Judge Folsom would ever entertain approval of any workaround. There is nothing in the injunction that tasks the judge to do anything. He is under no obligation to review anything. Moreover, there is no guarantee that if a workaround is ever approved that it would ever apply to the named installed DVRs but may instead only apply to the newer models. In any case, damages will accrue unless Dish stops recording and playing back. They have a free choice. No one is holding a gun to their heads requiring them to continue to infringe or regardless of infringement to defy the disablement order.


----------



## jacmyoung

dfd said:


> Wasn't this contempt appeal expedited? How many months did that take?
> 
> I would assume that there would be a discovery phase of this review, a hearing, and then an appeal by the losing party.
> 
> While it may be expedited it won't be quick is my guess.


That I do not disagree at all, the question is, who may come out with a decision first.


----------



## jacmyoung

Curtis52 said:


> ... and there is no guarantee that Judge Folsom would ever entertain approval of any workaround. There is nothing in the injunction that tasks the judge to do anything.


Then don't ask E* to inform and obtain approval, once Judge Folsom required E* to do so, he must also do what he said he would do.



> He is under no obligation to review anything.


He is because he said he would. If he refuses to do so, he cannot later complain, in fact E* may go back and argue his prior decision is in question because a big part of the court contention was E* did not inform and obtain approval last time. The legitimacy of the court prior decision will be in doubt.



> Moreover, there is no guarantee that if a workaround is ever approved that it would ever apply to the named installed DVRs but may instead only apply to the newer models.


I don't think E* is asking for a review of the new DVRs, just those 8 named DVRs, and additionally, I do not see anywhere in the filing that TiVo opposed such motion for review and approval. Usually if the other party opposes the motion, the title will say "opposed motion".



> In any case, damages will accrue unless Dish stops recording and playing back.


Not at all, damages can only be assessed for infringement. Disable or not is a question of violation of an order or not, as Judge Folsom and the majority said, regardless, i.e., has nothing to do, with the issue of infringement.

Can't have it both ways.



> They have a free choice. No one is holding a gun to their heads requiring them to continue to infringe or regardless of infringement to defy the disablement order.


No one is even asking them to disable at this time, but if the court does not exercise its reasonable discretion to stop infringement, in effect forces E* to continue the supposed infringement, the court will have lost its legitimacy in enforcing the law to prevent infringement.

At one time you agreed with me and Judge Rader that based on case law, violation is directly tied to infringement, now you have gone to the dark side and insist that infringement or not, has nothing to do with obeying the disabling order or not, so please can't have it both ways.


----------



## Maverickjoe

jacmyoung said:


> Then don't ask E* to inform and obtain approval, etc. etc. etc


As usual, most of your predictions/speculation/conjecture are based on a tortured reading of the plain language of the injunction. The CAFC just confirmed that, so let's leave it at that.



jacmyoung said:


> I don't think E* is asking for a review of the new DVRs, just those 8 named DVRs, and additionally, I do not see anywhere in the filing that TiVo opposed such motion for review and approval. Usually if the other party opposes the motion, the title will say "opposed motion".


Wrong again. The injunction calls for E* to shut off the all but 192,000 of the 8 named DVRs and any other placements of DVRs with software no more than colorably different. That's all of 'em, including the VIP's if they're running it too.:nono2:

Your lack of of competent knowledge of the legal system shows through if you think TiVo does not have an opportunity to oppose Dish's emergeny filings. Another prediction that will be proven wrong shortly.



jacmyoung said:


> Not at all, damages can only be assessed for infringement. Disable or not is a question of violation of an order or not, as Judge Folsom and the majority said, regardless, i.e., has nothing to do, with the issue of infringement.


You're on a roll today. Damages can absolutely be assessed for Dish being in Contempt of Court, regardless of whether they infringe or not. They are in contempt now and probably owe TiVo at least another $150M above the $300M+ due through last June, 2009.:nono2:

Here are some fun facts:
After the CAFC Mandated the last appeal, it took Folsom took 2 hearings to schedule a bench trial that took place 10 months after the Mandate. The Decision about the Dish s/w still infringing took 3 more months to make. If Dish doesn't shut it down this time, $2.25 trebled times 7M DVR's for 13 months is over $600M more in damages/sanctions. Let's all hope "Charlie the gambler" rolls them dice again!:hurah:


----------



## Greg Bimson

jacmyoung said:


> No one is even asking them to disable at this time, but if the court does not exercise its reasonable discretion to stop infringement, in effect forces E* to continue the supposed infringement, the court will have lost its legitimacy in enforcing the law to prevent infringement.


"forces E* to continue the supposed infringement"?

First, because the injunction is stayed, by the courts may I add, then the court is allowing the infringement to continue, just in case an appeal may have some bearing.

Second, the disable clause stops infringement. DISH/SATS can stop infringement now by disabling all DVR functionality now. They don't want to.

So to put the onus of ceasing infringement onto the courts is quite a bit disingenuous.


----------



## Curtis52

Greg Bimson said:


> So to put the onus of ceasing infringement onto the courts is quite a bit disingenuous.


Yep. Judge Folsom never enjoined himself. He never required himself to approve or disapprove or even evaluate anything.


----------



## jacmyoung

Maverickjoe said:


> As usual, most of your predictions/speculation/conjecture are based on a tortured reading of the plain language of the injunction. The CAFC just confirmed that, so let's leave it at that.


If you really don't have anything of substance to say, why bother?



> Wrong again. The injunction calls for E* to shut off the all but 192,000 of the 8 named DVRs and any other placements of DVRs with software no more than colorably different. That's all of 'em, including the VIP's if they're running it too.:nono2:


So you know E* is asking for review and approval of the VIP DVRs?



> Your lack of of competent knowledge of the legal system shows through if you think TiVo does not have an opportunity to oppose Dish's emergeny filings. Another prediction that will be proven wrong shortly.


Your lack of reading skill is shocking. I never said TiVo may not later oppose the motion, only that at this time, there is no indication that TiVo is opposing this motion. Why are you mad? You just won!



> You're on a roll today. Damages can absolutely be assessed for Dish being in Contempt of Court


It is called sanctions, not damages.



> Here are some fun facts:
> After the CAFC Mandated the last appeal, it took Folsom took 2 hearings to schedule a bench trial that took place 10 months after the Mandate. The Decision about the Dish s/w still infringing took 3 more months to make. If Dish doesn't shut it down this time, $2.25 trebled times 7M DVR's for 13 months is over $600M more in damages/sanctions. Let's all hope "Charlie the gambler" rolls them dice again!:hurah:


Why don't you tell Charlie that, maybe he is shaking in his boots right now.


----------



## jacmyoung

Curtis52 said:


> Yep. Judge Folsom never enjoined himself. He never required himself to approve or disapprove or even evaluate anything.


Then don't ask E* to inform and obtain approval, *before* E* may implement further design around to avoid infringement. By the virtue of asking E* to obtain approval *before* implementing further design around to stop infringement, he is now obligated to provide guidance in the future attempts to stop infringement.

If he refuses, then of course E* will be forced not to implement any design around to avoid infringement, because he told E*, without his approval, E* may not implement any further design around to avoid infringement.


----------



## Maverickjoe

jacmyoung said:


> If he refuses, then of course E* will be forced not to implement any design around to avoid infringement, because he told E*, without his approval, E* may not implement any further design around to avoid infringement.


Even this tortured interpretation completely fails when you consider the fact that there are many ways to disable the DVR functions without downloading anything.:eek2:

Dish will have 30 days to do whatver it takes to stop the DVRs from working, or they will be subject the enhanced sanctions Folsom promised. Period.


----------



## jacmyoung

Maverickjoe said:


> ...Dish will have 30 days to do whatver it takes to stop the DVRs from working, or they will be subject the enhanced sanctions Folsom promised. Period.


That is news to me, did the en banc panel already deny the review? Did the merits panel issue the mandate already? I haven't even seen E* filing its petition for en banc review yet.


----------



## jacmyoung

Maverickjoe said:


> Even this tortured interpretation completely fails when you consider the fact that there are many ways to disable the DVR functions without downloading anything.:eek2:


The only way TiVo said to disable was to download a new software, are you asking E* to violate TiVo's wish?


----------



## Curtis52

"TiVo filed a request today with the U.S. Court of Appeals for the Federal Circuit, which issued last week's ruling, asking that the order to halt Dish's DVR service take effect immediately. "

link


----------



## jacmyoung

Curtis52 said:


> "TiVo filed a request today with the U.S. Court of Appeals for the Federal Circuit, which issued last week's ruling, asking that the order to halt Dish's DVR service take effect immediately. "
> 
> link


There is no evidence TiVo is opposing E*'s request for approval of new designs, instead TiVo asks the appeals court to shut the DVRs off before Judge Folsom has a chance to make his own decision. Seem to indicate TiVo understands the new design review cannot be denied and the potential consequences of an approval?

They contend there is no reason the new design will work, but instead of telling Judge Folsom, they tell it to the appeals court. Did they forget that the panel majority said Judge Folsom has all the experience in this case and should be left to decide? Since when TiVo stopped trusting Judge Folsom to do the work for them? So much so they are now asking the appeals court to break its own procedures.

I guess this is how TiVo opposes the new design approval? I wonder who TiVo asked for a halt? Judge Rader? Because if you read the opinions, only Judge Rader said in effect he did not agree with Judge Folsom's judgment, while the majority basically said they want the decisions be left for Judge Folsom to make, they do not want to interfere


----------



## Curtis52

It looks like I was wrong about Dish getting 30 days to disable the DVRs after the stay is lifted. The 30 days was over a long time ago. Dish will have to disable the DVRs immediately.


----------



## Lord Vader

Curtis52 said:


> Dish will have to disable the DVRs immediately.


Why? Was there a ruling to this effect of which we are not aware?


----------



## jacmyoung

Lord Vader said:


> Why? Was there a ruling to this effect of which we are not aware?


The injunction is still stayed.

On 6/2/09, E* was given 30 days to disable, on 6/3/09, the appeals court stayed the order. There are at least 29 days left, if and when the stay is lifted.


----------



## Curtis52

Lord Vader said:


> Why? Was there a ruling to this effect of which we are not aware?


When the stay is lifted, the injunction will be in force again. The 30 day period ended months ago. Dish ignored it. That's why they were found to be in contempt.


----------



## Lord Vader

I have no horse in this race, but I'd bet the farm that DISH will _never _ end up disabling their DVRs.


----------



## jacmyoung

I also want to note that today the appeals court merits panel in the i4i v. MSFT case just granted MSFT's petition for a panel rehearing, and will also circulate MSFT's petition for en banc hearing to the full panel.

I have talked about the i4i v. MSFT case, it was an unanimous decision against MSFT, unlike this TiVo v. E* case a split decision. The i4i v. MSFT decision was issued on 12/22/09. The decision for starting the process of an en banc hearing has just begun today, nearly three months later.


----------



## jacmyoung

Curtis52 said:


> When the stay is lifted, the injunction will be in force again. The 30 day period ended months ago. Dish ignored it. That's why they were found to be in contempt.


Come on Curtis, you know better. Forgot how it worked last time in early 2008?

BTW I need to add, in the i4i v. MSFT case, I think the stay of the injunction was lifted with the decision to affirm on 12/22/09, though the panel gave MSFT more time, so the injunction took effect in early 01/10. Part of the reason MSFT only had half of the days left (total of 60 days I recall), was because MSFT waited a long time back then to request a stay of the injunction, when the injunction was stayed, half of the time had passed. But during that half of the time, MSFT said they had already designed around the i4i patent.

In this TiVo v. E* case, the majority did not lift the stay of the injunction.


----------



## Herdfan

jacmyoung said:


> The injunction is still stayed.
> 
> On 6/2/09, E* was given 30 days to disable, on 6/3/09, the appeals court stayed the order.


Yes, but it was stayed pending their review. Their review is over. TiVo won. Why would a stay be continued if its purpose was to allow the CAFC time to review the case? They have reviewed it and issued a ruling.


----------



## Herdfan

Lord Vader said:


> I have no horse in this race, but I'd bet the farm that DISH will _never _ end up disabling their DVRs.


If it is ever allowed to get to this point, every stakeholder in DISH (investors, subs, employees, installers, etc.) should march on Englewood looking for Charlie's head.


----------



## Greg Bimson

jacmyoung said:


> There is no evidence TiVo is opposing E*'s request for approval of new designs, instead TiVo asks the appeals court to shut the DVRs off before Judge Folsom has a chance to make his own decision. Seem to indicate TiVo understands the new design review cannot be denied and the potential consequences of an approval?
> 
> They contend there is no reason the new design will work, but instead of telling Judge Folsom, they tell it to the appeals court. Did they forget that the panel majority said Judge Folsom has all the experience in this case and should be left to decide? Since when TiVo stopped trusting Judge Folsom to do the work for them? So much so they are now asking the appeals court to break its own procedures.


Judge Folsom doesn't have any "work" regarding the stay.

Just as you've pointed out before, the Court of Appeals issued the stay. It is up to the Court of Appeals to remove it. They've yet to do so; TiVo motioned to remove the stay.


jacmyoung said:


> I have talked about the i4i v. MSFT case, it was an unanimous decision against MSFT, unlike this TiVo v. E* case a split decision. The i4i v. MSFT decision was issued on 12/22/09. The decision for starting the process of an en banc hearing has just begun today, nearly three months later.


Yet the injunction is active...


----------



## Curtis52

Herdfan said:


> Yes, but it was stayed pending their review. Their review is over. TiVo won. Why would a stay be continued if its purpose was to allow the CAFC time to review the case? They have reviewed it and issued a ruling.


On April 18, 2008 the stay dissolved. The 30 day clock started then. There wasn't another stay until June of 2009. The 30 days were up in 2008. That's why Dish was in contempt.


----------



## jacmyoung

Curtis52 said:


> On April 18, 2008 the stay dissolved. The 30 day clock started then. There wasn't another stay until June of 2009. The 30 days were up in 2008. That's why Dish was in contempt.


Two different injunctions, the old no longer existed, the new one was issued on 6/2/09, which gave E* 30 days.


----------



## jacmyoung

Herdfan said:


> Yes, but it was stayed pending their review. Their review is over. TiVo won. Why would a stay be continued if its purpose was to allow the CAFC time to review the case? They have reviewed it and issued a ruling.


Maybe because the panel knew the review was not complete at the time of their decision? E* has the right to seek panel rehearing and rehearing en banc.

This is of course a legal procedural issue maybe dgordo can answer. When the panel issued its decision in the i4i v. MSFT case, it also lifted the injunction at the same time. It is possible that parties had indicated and agreed to let the panel decide whether to lift, or vacate the injunction upon its decision, I am only guessing. If not, then the usual rule is to allow the reheairng process to take place before deciding whether to lift the stay or not. Any lawyers?


----------



## jacmyoung

Greg Bimson said:


> Judge Folsom doesn't have any "work" regarding the stay.
> 
> Just as you've pointed out before, the Court of Appeals issued the stay. It is up to the Court of Appeals to remove it. They've yet to do so; TiVo motioned to remove the stay.


In a split decision, with petition for en banc review a certainty? Why wasn't the injunction lifted upon the panel unanimous decision during the last appeal? I wasn't around back then.



> Yet the injunction is active...


In this MSFT panel rehearing and rehearing en banc petition, MSFT did not try to address the issue of the injunction, only the issue of willfulness and the award. This is an indication that MSFT likely agreed that if they lost on the issue of the injunction last time, they did not plan to appeal that particular issue, therefore the panel lifted the stay.

MSFT's own statements during the oral hearing demonstrated that, I recall listening to it and the MSFT lawyer saying they had already designed around the i4i patent and only asked for more days before the injunction was to take effect, which they got more days from the appeals panel.

In this case, it is clear from the TiVo comments that the reason TiVo asked the appeals court to lift the stay was because TiVo just learned E* was seeking approval for the new design from Judge Folsom, instead of opposing E*'s motion before Judge Folsom, TiVo asked the appeals court to lift the stay.

If it is true that TiVo's such request was triggered by the E*'s motion to Judge Folsom, I think the appeals court should stick to the majority's opinion, that they should let Judge Folsom decide. The other part is, there is no legitimate reason to lift the stay right now when the decision is a split one, which naturally gives cause for an en banc review.


----------



## Maverickjoe

jacmyoung said:


> The only way TiVo said to disable was to download a new software, are you asking E* to violate TiVo's wish?


There's nothing in the plain reading of the injunction thats says anything about TiVo's wishes or how they argued to get the injunction. It says what it says clear as a bell.:nono2:


----------



## Maverickjoe

jacmyoung said:


> When the panel issued its decision in the i4i v. MSFT case, it also lifted the injunction at the same time. It is possible that parties had indicated and agreed to let the panel decide whether to lift, or vacate the injunction upon its decision, I am only guessing.


The parties don't get to decide what authority the CAFC panel has. Your guess is backwards again.


----------



## jacmyoung

Maverickjoe said:


> There's nothing in the plain reading of the injunction thats says anything about TiVo's wishes or how they argued to get the injunction. It says what it says clear as a bell.:nono2:


Did you read Judge Rader's opinion? It has nothing to do with the letter of the injunction, but TiVo's intent. So when you said E* could disable using different means, my response was, it was TiVo's wish (i.e. intent) to do so with a software download, were you asking E* to go against TiVo' wish (i.e. intent)?

Can you read?


----------



## jacmyoung

Maverickjoe said:


> The parties don't get to decide what authority the CAFC panel has. Your guess is backwards again.


MSFT in its brief and during the oral argument asked the panel to allow more days if they were to lift the stay, the panel gave them some, then lifted the stay.

The appeals panels always consider any concessions parties make during the oral arguments and act upon them. For example, during the previous E* appeal, the panel asked both TiVo and E*, if they reversed the hardware claims verdict, but still upheld the software claims verdict, should they affirm the judgment and lift the stay of the injunction?

Both parties said yes.


----------



## dfd

jacmyoung said:


> Did you read Judge Rader's opinion? It has nothing to do with the letter of the injunction, but TiVo's intent. So when you said E* could disable using different means, my response was, it was TiVo's wish (i.e. intent) to do so with a software download, were you asking E* to go against TiVo' wish (i.e. intent)?
> 
> Can you read?


What force of law does the dissenting opinion carry? My guess, not much more than the sum total of all that has been typed here.

What will be in force soon is the injunction. Dissenting opinions, E*'s arguments, and even Tivo's arguments are all history now. The injunction will be in force soon and that is all that matters.


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## jacmyoung

dfd said:


> What force of law does the dissenting opinion carry? My guess, not much more than the sum total of all that has been typed here.
> 
> What will be in force soon is the injunction. Dissenting opinions, E*'s arguments, and even Tivo's arguments are all history now. The injunction will be in force soon and that is all that matters.


Missing the point again, it has nothing to do with the injunction, rather TiVo's intent. Unless you may argue that TiVo asked E* to disable using other means, if you agree the only way TiVo asked was using a software download, then you must agree that Joe was asking E* to *violate TiVo's intent* by implying that E* should disable using other means, I did not say he was asking E* to *violate the injunction*, rahter *violate TiVo's wish*.

Read carefully!


----------



## dfd

jacmyoung said:


> Missing the point again, it has nothing to do with the injunction, rather TiVo's intent. Unless you may argue that TiVo asked E* to disable using other means, if you agree the only way TiVo asked was using a software download, then you must agree that Joe was asking E* to *violate TiVo's intent* by implying that E* should disable using other means, I did not say he was asking E* to *violate the injunction*, rahter *violate TiVo's wish*.
> 
> Read carefully!


Please state where the order specifies the means of disablement.

E* made the argument that they didn't need to recall the physical devices as they could disable via satellite. That doesn't give them a free pass to not disable by any means.

Who is Joe?


----------



## jacmyoung

dfd said:


> Please state where the order specifies the means of disablement.
> 
> E* made the argument that they didn't need to recall the physical devices as they could disable via satellite. That doesn't give them a free pass to not disable by any means.
> 
> Who is Joe?


The third person posting here? Did you put him on ignore? Are you so narrowly minded that you refuse to read others?

Let me repeat, nothing to do with "the order", or "the injunction", only "TiVo's intent", so keep your eyes on the ball.


----------



## jacmyoung

Now let me make another point.

If one reads the appeals panel in the i4i v. MSFT order granting MSFT's petition for a panel rehearing, it did so because MSFT argued on a narrow issue of willfulness, which MSFT said was not addressed during the appeal.

Here, there is one clear issue of the TiVo expert admitting that the new design no longer "temporarily stored any data". If this is an issue E* failed to raise during the appeal, technically the appeals panel can grant a panel rehearing to consider that narrow issue, and that narrow issue only, while also begin the process for an en banc review vote.

If so, it is possible the panel may consider that "temporarily stores said audio and video data" claim element, if they agree with E*, then they will have to overturn the infringement finding and vacate the damages and sanctions award, leaving at the most the attorney fees and costs award intact. That is even before the en banc decision is known.

Again, simply using the i4i v. MSFT as an example, it could happen months from now.

That is if the E* team agrees the above issue is a valid one. I am no lawyer, only arguing from a procedural standpoint, using the i4i v. MSFT case as an example.


----------



## Greg Bimson

jacmyoung said:


> In a split decision, with petition for en banc review a certainty? Why wasn't the injunction lifted upon the panel unanimous decision during the last appeal? I wasn't around back then.


It was lifted by the CAFC panel with regard to the unanimous decision. However, the lifting of the stay did not take effect until the appeal ran its course.

And that does make me believe something is up. The CAFC issued the emergency stay. I don't believe Judge Folsom has jurisdiction to remove that stay. The stay must be lifted by the court that ordered it.


----------



## jacmyoung

Greg Bimson said:


> ...I don't believe Judge Folsom has jurisdiction to remove that stay...


Of course not, what are you trying to get at? That TiVo could not ask Judge Folsom to lift the stay? The issue is not about that, rather why TiVo instead of opposing E*'s motion for approval, motioned the appeals court for an immediate lift of the stay, as soon as E* motioned Judge Folsom for an approval?

The appeals court did not just issue an emergency stay, they later granted a normal stay pending appeal.

BTW, if you are correct about the previous appeal, then you are essentially saying the appeals court will let the appeal go through its own course before lifting the stay?


----------



## Greg Bimson

jacmyoung said:


> Of course not, what are you trying to get at? That TiVo could not ask Judge Folsom to lift the stay?


I thought that was the suggestion you put forth.


jacmyoung said:


> The issue is not about that, rather why TiVo instead of opposing E*'s motion for approval, motioned the appeals court for an immediate lift of the stay, as soon as E* motioned Judge Folsom for an approval?


Two different issues.

TiVo has time to respond to DISH/SATS motion for approval. I haven't read the document, but I can guarantee there is time. That is why TiVo hasn't opposed it, yet.

However, TiVo (like others here) is wondering why the Court of Appeals hadn't lifted the stay. TiVo motioned the CAFC because the stay hadn't been lifted...


jacmyoung said:


> BTW, if you are correct about the previous appeal, then you are essentially saying the appeals court will let the appeal go through its own course before lifting the stay?


Sort of. The CAFC will lift the stay by saying the stay dissolves upon remand of the case. Therefore, the case must finish the appeals process and get back to Judge Folsom before the stay is dissolved.


----------



## Maverickjoe

jacmyoung said:


> Did you read Judge Rader's opinion? It has nothing to do with the letter of the injunction, but TiVo's intent. So when you said E* could disable using different means, my response was, it was TiVo's wish (i.e. intent) to do so with a software download, were you asking E* to go against TiVo' wish (i.e. intent)?


We must be talking about two different things here. I'm talking about this utterly ignorant and misguided analysis of Folsoms ORDER that you made - it has nothing to do with Judge Rader, TiVo's wishes (i.e. intent), or anything you make up that is not contained within the four corners of Folsom's ORDER:



jacmyoung said:


> Then don't ask E* to inform and obtain approval, before E* may implement further design around to avoid infringement. By the virtue of asking E* to obtain approval before implementing further design around to stop infringement, he is now obligated to provide guidance in the future attempts to stop infringement.
> 
> If he refuses, then of course E* will be forced not to implement any design around to avoid infringement, because he told E*, without his approval, E* may not implement any further design around to avoid infringement.


I can honestly say we have no idea what you are talking about. It's as if you have never read Folsom's ORDER that the CAFC's decision AFFIRMED.:hurah:


----------



## Curtis52

Per Judge Folsom's sanctions award order, the contempt period began on the date of the mandate 04-18-08, not 30 days after the mandate. Dish will have to shut down the DVRs immediately after the stay is dissolved or be in contempt again.


----------



## jacmyoung

Greg Bimson said:


> ...TiVo has time to respond to DISH/SATS motion for approval. I haven't read the document, but I can guarantee there is time. That is why TiVo hasn't opposed it, yet...


That I agree, but you are still missing my point.

TiVo motioned the appeals court for an immediate lift in part because they argued E*'s new design could not possibly be valid and therefore could not be approved, so why don't you just lift the stay and stop E*'s such tactic?

But naturally such argument should be made to Judge Folsom don't you think? Because he is in the best position to determine the chances of the E* new design. If TiVo tried to get around Judge Folsom, can you not see TiVo is very concerned that Judge Folsom might actually approve it?


----------



## jacmyoung

Greg Bimson said:


> ...However, TiVo (like others here) is wondering why the Court of Appeals hadn't lifted the stay. TiVo motioned the CAFC because the stay hadn't been lifted...Sort of...


Not true, TiVo is asking for an immediate lift of the stay, not lifting the stay after the appeal goes through it own normal course, which includes panel rehearing and en banc rehearing procedures, which can take months to decide.


----------



## jacmyoung

Maverickjoe said:


> ...I can honestly say we have no idea what you are talking about.


Speak for yourself, not everyone else. Other posters have no problem understanding what I am saying and responding to my specific points.


----------



## Greg Bimson

Curtis52 said:


> Per Judge Folsom's sanctions award order, the contempt period began on the date of the mandate 04-18-08, not 30 days after the mandate. Dish will have to shut down the DVRs immediately after the stay is dissolved or be in contempt again.


I'm fairly certain that is correct. It isn't a "new order", it is an amended order. The clock on the 30-day disable period has passed; it doesn't get restarted.


jacmyoung said:


> TiVo motioned the appeals court for an immediate lift in part because they argued E*'s new design could not possibly be valid and therefore could not be approved, so why don't you just lift the stay and stop E*'s such tactic?


I haven't seen the motion TiVo filed with the Court of Appeals, so I don't know that "E*'s new design" was part of the argument. I simply thought TiVo made the request at the Court of Appeals simply because the Court of Appeals didn't disposition the stay when issuing their decision. The Court of Appeals is supposed to do something with the stay once they've issued their decision.


----------



## Maverickjoe

Curtis52 said:


> Per Judge Folsom's sanctions award order, the contempt period began on the date of the mandate 04-18-08, not 30 days after the mandate. Dish will have to shut down the DVRs immediately after the stay is dissolved or be in contempt again.


Folsom's Amended Final Judgment and Permanent Injunction dated June 2, 2009 clearly states that "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality..."

Two days later Dish filed a 29-page Emergency Motion for a Stay Pending Appeal with the CAFC and got the temporary stay that same day. So 2 days have elapsed into the 30 days they had since June 2, 2009. They will have 28 days to do what they have to do when the CAFC stay is lifted.

BTW, does anyone see the irony in Dish having already written a 29-page brief begging the Court to change its mind before they knew what it was going to? Their lawyers knew while they were arguing that Folsom wasn't going to buy any of their design-around b/s. What do you think they're confidence is on design-arounds 2, 3 and 4?


----------



## jacmyoung

Greg Bimson said:


> I'm fairly certain that is correct. It isn't a "new order", it is an amended order. The clock on the 30-day disable period has passed; it doesn't get restarted.
> 
> 
> 
> Then why does the current order say 30 days? Why not make it clear it should be "immediately"? An order must be very clear and precise.
> 
> 
> 
> 
> I haven't seen the motion TiVo filed with the Court of Appeals, so I don't know that "E*'s new design" was part of the argument. I simply thought TiVo made the request at the Court of Appeals simply because the Court of Appeals didn't disposition the stay when issuing their decision. The Court of Appeals is supposed to do something with the stay once they've issued their decision.
> 
> 
> 
> Then you did not read the news link provided by Curtis52 carefully.
> 
> Click to expand...
Click to expand...


----------



## jacmyoung

Maverickjoe said:


> Folsom's Amended Final Judgment and Permanent Injunction dated June 2, 2009 clearly states that "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality..."
> 
> Two days later Dish filed a 29-page Emergency Motion for a Stay Pending Appeal with the CAFC and got the temporary stay that same day. So 2 days have elapsed into the 30 days they had since June 2, 2009. They will have 28 days to do what they have to do when the CAFC stay is lifted.
> 
> BTW, does anyone see the irony in Dish having already written a 29-page brief begging the Court to change its mind before they knew what it was going to? They're lawyers knew while they were arguing that Folsom wasn't going to buy any of their design-around b/s. What do you think they're confidence is on design-arounds 2, 3 and 4?


The initial E* papers were filed on the same day Judge Folsom issued his order on 6/2/09, the temporary stay was granted on 6/3/09 as I recall.

You have finally reached the point I have done so long ago, that is time after time they have anticipated they may not win, their actions showed that they have always planned to fight all the way. It is Charlie's money, as I told you many times.


----------



## Maverickjoe

Greg Bimson said:


> I haven't seen the motion TiVo filed with the Court of Appeals, so I don't know that "E*'s new design" was part of the argument. I simply thought TiVo made the request at the Court of Appeals simply because the Court of Appeals didn't disposition the stay when issuing their decision. The Court of Appeals is supposed to do something with the stay once they've issued their decision.


Jac hasn't see the motion TiVo filed with the court of Appeals either, yet here he is giving us details of the arguments it contains, refuting them and declaring Dish the winner (at least the winner of second place). Why don't we wait until we see TiVo's motion to end the stay before we debate it? Maybe we could also wait to see TiVo's Opposition to Dish's request for pre-Approval before claiming that it is an unopposed motion.


----------



## Maverickjoe

jacmyoung said:


> The initial E* papers were filed on the same day Judge Folsom issued his order on 6/2/09, the temporary stay was granted on 6/3/09 as I recall.


Wrong again jac. The dates of their filings contained within the briefs were what I stated. June 2, 2009 for the Amended Final Injunction, and June 3, 2009 for Dish Emergency Motion for Stay and the CAFC granting it.


----------



## Maverickjoe

jacmyoung said:


> TiVo motioned the appeals court for an immediate lift in part because they argued E*'s new design could not possibly be valid and therefore could not be approved, so why don't you just lift the stay and stop E*'s such tactic?
> 
> But naturally such argument should be made to Judge Folsom don't you think? Because he is in the best position to determine the chances of the E* new design. If TiVo tried to get around Judge Folsom, can you not see TiVo is very concerned that Judge Folsom might actually approve it?


It's almosy uncanny how many times one person can be this wrong, but Jac does it again. Now that some of us have read TiVo's motion to lift the stay (kudos to Mainer), there is nothing in the brief that argues that "E*'s new design could not possibly be valid and therefore could not be approved". Let's try a little harder to stop throwing stuff against the wall to see what sticks, and have a debate on real facts.


----------



## Greg Bimson

Greg Bimson said:


> I'm fairly certain that is correct. It isn't a "new order", it is an amended order. The clock on the 30-day disable period has passed; it doesn't get restarted.





jacmyoung said:


> Then why does the current order say 30 days? Why not make it clear it should be "immediately"? An order must be very clear and precise.


The "amended order" also contains the damages award TiVo must be paid from the trial period, which was already done:


> IT IS THEREFORE ORDERED THAT Plaintiff shall have and recover from Defendants, jointly and severally, the total sum of $73,991,964.00, together with prejudgment interest at the rate of prime, said prejudgment interest in the total sum of $5,367,544.00, together with supplemental damages in the amount of $10,317,108.00, together with post-judgment interest on the entire sum calculated pursuant to 28 U.S.C. § 1961.


The order doesn't force DISH/SATS to pay that money again. That is why it is an amended order.

I found the language from the CAFC during the last appeal:


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


That language isn't anywhere in the contempt decision from the CAFC.


----------



## Curtis52

Greg Bimson said:


> The order doesn't force DISH/SATS to pay that money again. That is why it is an amended order.


Exactly, likewise there is no requirement to start the clock again. The clock ran out during the previous stay. That's why the contempt period began when the first stay was dissolved and Dish didn't immediately disable the DVRs.


----------



## Greg Bimson

And I was just looking back at that speculation thread from the time the CAFC sent the case back to Folsom, until TiVo filed their agenda for the 30 May 2008 status hearing.

The clock is done. The clock doesn't stop during a stay. Just the execution of the order. Once the order is "unstayed", the disable clause will be in effect immediately.


----------



## jacmyoung

Maverickjoe said:


> It's almosy uncanny how many times one person can be this wrong, but Jac does it again. Now that some of us have read TiVo's motion to lift the stay (kudos to Mainer), there is nothing in the brief that argues that "E*'s new design could not possibly be valid and therefore could not be approved". Let's try a little harder to stop throwing stuff against the wall to see what sticks, and have a debate on real facts.


Of course they cannot say so in front of the court, but in their press release, it was clear of the intent of TiVo's motion. They are very concerned that Judge Folsom might just approve the new design for implementation, if so all their effort can go down the drain, well almost.


----------



## jacmyoung

Greg Bimson said:


> And I was just looking back at that speculation thread from the time the CAFC sent the case back to Folsom, until TiVo filed their agenda for the 30 May 2008 status hearing.
> 
> The clock is done. The clock doesn't stop during a stay. Just the execution of the order. Once the order is "unstayed", the disable clause will be in effect immediately.


If so there is one more reason not to lift it immediately, don't you think? If the appeals court do so as asked by TiVo, then all the sudden 6 million DVRs will lose their DVR functions. What if later the appeals panel agrees to rehear some narrow issues, and let the full panel to vote on en banc? What if later the full panel reverses the ruling? Not that there is no reason to believe they will happen, we have a split decision here, as I have pointed out, in the i4i v. MSFT case the decision was unanimous, yet the merits panel still granted a rehearing.

How do you suppose the court may address that?


----------



## Greg Bimson

jacmyoung said:


> If so there is one more reason not to lift it immediately, don't you think?
> 
> [...]
> 
> How do you suppose the court may address that?


By using the same language that was in the prior decision from the CAFC:

The stay that was issued pending appeal will dissolve when this appeal becomes final.

It is the only reason TiVo motioned the CAFC. They stayed the injunction but forgot to include any timeline to dissolve the stay.


----------



## jacmyoung

Greg Bimson said:


> By using the same language that was in the prior decision from the CAFC:
> 
> The stay that was issued pending appeal will dissolve when this appeal becomes final.
> 
> It is the only reason TiVo motioned the CAFC. They stayed the injunction but forgot to include any timeline to dissolve the stay.


That is not the same as immediately lifting the stay, even if the appeals panel goes back and do what the previous panel did, the stay will still not be lifted or run its own course immediately, rather after the panel rehearing and en banc rehearing are settled.

TiVo asked that the stay is lifted right now, not wait for the rehearings.


----------



## Greg Bimson

jacmyoung said:


> That is not the same as immediately lifting the stay, even if the appeals panel goes back and do what the previous panel did, the stay will still not be lifted or run its own course immediately, rather after the panel rehearing and en banc rehearing are settled.
> 
> TiVo asked that the stay is lifted right now, not wait for the rehearings.


Well, the "immediately" comment is from a news report. I'd prefer to wait and see the actual document filed with the CAFC.

The reality is because the CAFC didn't mention anything about the stay in their decision, I have to assume TiVo had to file something in order for the CAFC to acknowledge the dissolution of the stay at some time...


----------



## peak_reception

jacmyoung said:


> If so there is one more reason not to lift it immediately, don't you think? If the appeals court do so as asked by TiVo, then all the sudden 6 million DVRs will lose their DVR functions. What if later the appeals panel agrees to rehear some narrow issues, and let the full panel to vote on en banc? What if later the full panel reverses the ruling? Not that there is no reason to believe they will happen, we have a split decision here, as I have pointed out, in the i4i v. MSFT case the decision was unanimous, yet the merits panel still granted a rehearing.
> 
> How do you suppose the court may address that?


I doubt that the total is anywhere close to 6 million anymore but I have to agree with jac on the other point. The CAFC will find a way to let those customers keep their DVR functionailty until the en banc appeal is accepted (whereupon they keep it even longer) or declined (whereupon they need to obey the injunction or pay heavy fines yet to be decided).

I don't, however, think that the Hail Mary to download another workaround in the meanwhile will be accepted by Judge Folsom. "Judicial Economy" and all that will probably be cited. This endgame should be fascinating to watch play out, maybe even enough to draw me away from the American Idol threads.


----------



## Curtis52

peak_reception said:


> I doubt that the total is anywhere close to 6 million anymore


If the newer models use software with the same algorithms, those models are in contempt as much as the named models. I'm guessing the number is 8 million.


----------



## peak_reception

I'm just talking about the "Infringing Products" listed in the original Injunction. If the VIPs etc. get swept up into it then, yes, the numbers increase dramatically. But for now they're not. Why hasn't TiVo filed yet to include them In Contempt by merely colorable difference?


----------



## Greg Bimson

peak_reception said:


> Why hasn't TiVo filed yet to include [the ViP DVRs] In Contempt by merely colorable difference?


Because TiVo hasn't decided to inflict maximum pain.

They figure by having DISH/SATS turn off a chunk of DVR's they'll have to come to the negotiating table. We've seen how that has worked so far.


----------



## jacmyoung

Greg Bimson said:


> Because TiVo hasn't decided to inflict maximum pain.
> 
> They figure by having DISH/SATS turn off a chunk of DVR's they'll have to come to the negotiating table. We've seen how that has worked so far.


Because Tivo embarked on the strategy of separating disabling from infringement, and TiVo is only focused on the disabling part since that is the quick and easy way to avoid a new trial, because the issue of disabling is only limited to the 8 named DVRs, therefore anything talked about for now is limited only to the 8 named DVRs.

Had TiVo correctly connected the disabling and infringement issues as one single issue, not separately, they could have rolled all new DVRs in, because they might all be subject to the "not to infringe" part of the injunction, but TiVo will risk having a new trial ordered, instead of doing it in a contempt proceeding.


----------



## jacmyoung

Greg Bimson said:


> Well, the "immediately" comment is from a news report. I'd prefer to wait and see the actual document filed with the CAFC.
> 
> The reality is because the CAFC didn't mention anything about the stay in their decision, I have to assume TiVo had to file something in order for the CAFC to acknowledge the dissolution of the stay at some time...


You can ask Joe, he already read TiVo's filing. TiVo is asking an immediate lift, if Joe read it differently, I am sure he will waste no time to point it out to me


----------



## Greg Bimson

Right or wrong, I'm simply stating that TiVo is trying to force DISH/SATS to the negotiating table. Tivo wants a licensing agreement for ALL DVR's, by having a subset of those DVR's subject to an injunctive order to have their functionality disabled.

It has nothing to do with a "new trial". TiVo wants DISH/SATS at the table to hammer out a licensing agreement.


----------



## Curtis52

peak_reception said:


> If the VIPs etc. get swept up into it then, yes, the numbers increase dramatically. But for now they're not.


Ergen acknowledged that all the DVRs would have to be disabled if they lose.


----------



## Maverickjoe

jacmyoung said:


> Because Tivo embarked on the strategy of separating disabling from infringement, and TiVo is only focused on the disabling part since that is the quick and easy way to avoid a new trial, because the issue of disabling is only limited to the 8 named DVRs, therefore anything talked about for now is limited only to the 8 named DVRs.
> 
> Had TiVo correctly connected the disabling and infringement issues as one single issue, not separately, they could have rolled all new DVRs in, because they might all be subject to the "not to infringe" part of the injunction, but TiVo will risk having a new trial ordered, instead of doing it in a contempt proceeding.


Why don't you go back and read the entire Amended Injunction before you make these baseless snd ridiculous statements? TiVo didn't separate anything. Folsom established two independent justifications for Dish to turn off DVR services - one related to the named DVRs, the other related to ANY DVR's USING S/W NOT MORE THAN COLORABLY DIFFERENT. It's not DVR's that do BOTH, it's DVR's that do EITHER. Why don't you just read the injunction?

The time for TiVO to address the other DVRs is when Dish does not comply with the plain language of the injunction and refuses to turn off DVRs that run software that is not more than colorably different.


----------



## scooper

Curtis52 said:


> Ergen acknowledged that all the DVRs would have to be disabled if they lose.


Say WHAT ?!?!

The only DVRs under any injunction at this time are the original named models. The ViPs are not under any kind of injunction at this time.


----------



## Curtis52

scooper said:


> The ViPs are not under any kind of injunction at this time.


Sure they are:

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



> "If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying potential new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field and cease distribution of digital set-top boxes with DVR functionality."


----------



## Maverickjoe

scooper said:


> Say WHAT ?!?!
> 
> The only DVRs under any injunction at this time are the original named models. The ViPs are not under any kind of injunction at this time.


I don't get it? How can you read the Amended Injunction and not understand this? It's one thing to wish it doesn't happen, but it's another thing altogether to be in denial that it's happening. Embrace the horror man, that's not a light at the end of the tunnel!


----------



## jacmyoung

Greg Bimson said:


> Right or wrong, I'm simply stating that TiVo is trying to force DISH/SATS to the negotiating table. Tivo wants a licensing agreement for ALL DVR's, by having a subset of those DVR's subject to an injunctive order to have their functionality disabled.


I don't think anyone has ever questioned that, so I don't know mentioning it will help you much.



> It has nothing to do with a "new trial". TiVo wants DISH/SATS at the table to hammer out a licensing agreement.


It explains why TiVo has yet touched on the new DVRs, because of the risk of been forced into a new jury trial to resolve it.

TiVo will and has been applying max pain, if you think TiVo is leaving some leverages behind for later, I have a bridge to sell you. But sometimes other measures can have higher risk.


----------



## Greg Bimson

jacmyoung said:


> TiVo will and has been applying max pain, if you think TiVo is leaving some leverages behind for later, I have a bridge to sell you. But sometimes other measures can have higher risk.


jac, you're missing the point.

Unless there is some hail mary at the end, the devices will have to be disabled. Perhaps that is why we haven't seen the _en banc_ request; DISH/SATS may be trying to delay until the last possible moment their requests, simply to stretch out the amount of time it takes to get the case back to Judge Folsom and the injunction to go in effect.

There is no need for TiVo to go after the ViP series when at some point DISH/SATS will have to come to TiVo to stop the disable clause...


----------



## scooper

Source for this -? 

Quote:
"If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying potential new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field and cease distribution of digital set-top boxes with DVR functionality."


----------



## They'reBaaaack

Check some of Echostars recent SEC filings. Charlie et al expect you to.


----------



## Maverickjoe

scooper said:


> Source for this -?
> 
> Quote:
> "If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying potential new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field and cease distribution of digital set-top boxes with DVR functionality."


It's from Dish most recent 3/1/2010 10-K SEC filing. For Gods sake if you just google "eliminate DVR functionality" you will find links to several Dish SEC filings that use that exact expression. Does anyone who uses Dish have a GED?


----------



## Michael P

I wonder who (and/or what models) are included in the 192,000 STB's?


----------



## jacmyoung

Greg Bimson said:


> jac, you're missing the point.
> 
> Unless there is some hail mary at the end, the devices will have to be disabled. Perhaps that is why we haven't seen the _en banc_ request; DISH/SATS may be trying to delay until the last possible moment their requests, simply to stretch out the amount of time it takes to get the case back to Judge Folsom and the injunction to go in effect.
> 
> There is no need for TiVo to go after the ViP series when at some point DISH/SATS will have to come to TiVo to stop the disable clause...


If so then TiVo is risking it too and stupid. I don't know how many of those old DVRs are still around, what we know is E* has started installing those all-MPEG4 DVRs some time ago, not to mention that the VIP DVRs have gone through several generations already. Waiting for the final resolution on just those 8 named old DVRs, which can take another 6 months or a year?

Going after the newer DVRs will be a whole new ball game though, not only because the software, but the hardware are different, as I have quoted Judge Folsom saying earlier, if both software and hardware are different, the issue of infringement will be more complex, not to mention they are not subject to the disabling order, therefore very likely things will have to be sorted out by a jury again. TiVo cannot let that happen for two very simple reasons, E* has already proven they do not infringe on the hardware claims, and the software claims are under rejection by the PTO for now. A new trial will have to take all these into consideration.


----------



## jacmyoung

Maverickjoe said:


> It's from Dish most recent 3/1/2010 10-K SEC filing. For Gods sake if you just google "eliminate DVR functionality" you will find links to several Dish SEC filings that use that exact expression. Does anyone who uses Dish have a GED?


E* has always put out the worst case numbers so Charlie cannot be liable if the investors later complain, they should have known for a long time what they are getting into when they invest in E* and DISH.


----------



## Curtis52

Michael P said:


> I wonder who (and/or what models) are included in the 192,000 STB's?


It's just a number. Dish was free to choose individual boxes to leave active.


----------



## scooper

Michael P said:


> I wonder who (and/or what models) are included in the 192,000 STB's?


Mostly the 721, 921, 941,942 receivers - receivers that Dish decided were not worth trying to update. Most of these have long since been retired.


----------



## Lord Vader

Greg Bimson said:


> jac, you're missing the point.
> 
> Unless there is some hail mary at the end, the devices will have to be disabled.


DISH's DVRs will *never *end up being disabled.

Book it.


----------



## deaincaelo

I'm disappointed by this. The majority opinion ignored my biggest concern- the apparent contradiction between the ideas that tivo did not invent the DVR and that you can't have a DVR without (infringing on) TIVO ('s patent.)

In fact, they seem to hold the opinion that you cant record tv without TIVO. ("TiVo’s patent covers various features essential to the working of a DVR.") Maybe I'm wrong about that. It's disappointing in any case.


----------



## jacmyoung

Lord Vader said:


> DISH's DVRs will *never *end up being disabled.
> 
> Book it.


Very simply put, if Judge Folsom approves the new design for implementation, the DVRs will not be disabled. The timing is not even relevant because Judge Folsom will almost certainly have started the review process before the stay is lifted, unless of course if TiVo actually succeeds in having the stay lifted before Judge Folsom begins the review.

If the stay is lifted before Judge Folsom completes his review and approval but after he starts the review, as long as he has already started the review, the process will have to be concluded, so the eventual approval will keep the DVR functions on. He may come back and sanction E* for the continued use of the DVR functions after the lift of the stay, and before his approval and implementation, but the DVR functions will not be disabled.

Of course if he disapproves the new design, it will be a different story. BTW, the standard of approval will be based on the issue of infringement and infringement only. If he decides the new design no longer infringes, he will have to approve it for implementation.

This is why TiVo is trying to get the stay lifted ASAP, hopefully before Judge Folsom even has the chance to *begin* the review of the new design.


----------



## Maverickjoe

jacmyoung said:


> Very simply put, if Judge Folsom approves the new design for implementation, the DVRs will not be disabled. The timing is not even relevant because Judge Folsom will almost certainly have started the review process before the stay is lifted, unless of course if TiVo actually succeeds in having the stay lifted before Judge Folsom begins the review.
> 
> If the stay is lifted before Judge Folsom completes his review and approval but after he starts the review, as long as he has already started the review, the process will have to be concluded, so the eventual approval will keep the DVR functions on. He may come back and sanction E* for the continued use of the DVR functions after the lift of the stay, and before his approval and implementation, but the DVR functions will not be disabled.
> 
> Of course if he disapproves the new design, it will be a different story. BTW, the standard of approval will be based on the issue of infringement and infringement only. If he decides the new design no longer infringes, he will have to approve it for implementation.
> 
> This is why TiVo is trying to get the stay lifted ASAP, hopefully before Judge Folsom even has the chance to *begin* the review of the new design.


Here is a guarantee, as sure as the sun comes tomorrow. As long as Dish is in Contempt of Court, Folsom will not even consider reviewing any more of their b/s excuses, "design-arounds", "next-generation-DVR-software", etc. There is no Court in this country that will give 1 iota to any party that is adjudged and affirmed on appeal to be in contempt. That you people don't get this is becoming clearer every day. You have drank Charlie's kool-aid and you're all going to...:eek2:

Take it to the bank.


----------



## scooper

If his Honor DOESN"T do that review - I'd bet it will be hauled up to the Appeals Court again - contempt or not...


----------



## tivonomo

Maverickjoe said:


> Here is a guarantee, as sure as the sun comes tomorrow. As long as Dish is in Contempt of Court, Folsom will not even consider reviewing any more of their b/s excuses, "design-arounds", "next-generation-DVR-software", etc. There is no Court in this country that will give 1 iota to any party that is adjudged and affirmed on appeal to be in contempt. That you people don't get this is becoming clearer every day. You have drank Charlie's kool-aid and you're all going to...:eek2:
> 
> Take it to the bank.


That is one of the most intelligent posts ever. I completely agree with your perspective.


----------



## tivonomo

scooper said:


> If his Honor DOESN"T do that review - I'd bet it will be hauled up to the Appeals Court again - contempt or not...


The DVR's in the field will still need licensing or they will be in contempt at a much higher sanction. And that's a fact. Charlie can appeal all he wants but he is out of stays.


----------



## Curtis52

How long will the review and the inevitable appeals take? Two years?


----------



## Curtis52

Dish is not currently in contempt of court.


----------



## tivonomo

Curtis52 said:


> Dish is not currently in contempt of court.


How so?

The stay of the injunction only delays the enforcement of the injunction. Until they comply with the injunction or a court overturns Folsom, Dish is in Contempt.


----------



## Curtis52

tivonomo said:


> How so?
> 
> The stay of the injunction only delays the enforcement of the injunction. Until they comply with the injunction or a court overturns Folsom, Dish is in Contempt.


According to Judge Folsom, the period of contempt ended July 1, 2009.


----------



## Greg Bimson

Curtis52 said:


> According to Judge Folsom, the period of contempt ended July 1, 2009.


Is that when the contempt period ended, or is that when Judge Folsom addressed the amount of contempt damages?

Just asking, because the light went off, and he didn't issue a stay of his order. That order was stayed by the CAFC (was it 3 June?). If so, the sanctions included the period during the stay issued by the CAFC. I think once Judge Folsom gets the case back the sanctions award continues to pile, just like the infringement damages did, no?

Pleading ignorance on sanctions, but not on this...


jacmyoung said:


> Going after the newer DVRs will be a whole new ball game though, not only because the software, but the hardware are different, as I have quoted Judge Folsom saying earlier, if both software and hardware are different, the issue of infringement will be more complex, not to mention they are not subject to the disabling order, therefore very likely things will have to be sorted out by a jury again.


Huh? I bet you didn't know that the ViP622/722 are "Broadcom" DVR's. They may use a slightly different chip that the 522/625, but if the 622/722 perform basically the same function in basically the same way, within the context of the infringed claims, then they are merely colorably different than those adjudged DVR's found infringing. That doesn't require a jury or a trial.

Case in point: DISH/SATS changed the software in the 622/722 once the original eight models of DVR were found infringing. DISH/SATS was scared the original version of the 622/722 receivers infringed, so they changed it to be like the 5XX and Broadcom DVR's. That should tell you all you need to know about the likelyhood of colorable difference...


----------



## Greg Bimson

deaincaelo said:


> I'm disappointed by this. The majority opinion ignored my biggest concern- the apparent contradiction between the ideas that tivo did not invent the DVR and that you can't have a DVR without (infringing on) TIVO ('s patent.)


It is the facts that were laid out in front of both Judge Folsom and the CAFC. TiVo simply referred back to the trial, and used all of what was presented there to get infringement proved (again).

Finding contempt and infringement wasn't about presenting all-new theories (irrespective of Judge Rader's position), TiVo simply culled the prior testimony.


----------



## jacmyoung

Greg Bimson said:


> ...Just asking, because the light went off, and he didn't issue a stay of his order. That order was stayed by the CAFC (was it 3 June?). If so, the sanctions included the period during the stay issued by the CAFC.


He simply cannot sanction E* for reason of violating his injunction when his injunction is stayed, otherwise the stay has no meaning. He did not sanction E* during the last stay, only applied damages for infringement, sanction was applied only after the injunction took effect.



> I think once Judge Folsom gets the case back the sanctions award continues to pile, just like the infringement damages did, no?


Not if after the en banc it is reversed, or if he approves the new design.



> Pleading ignorance on sanctions, but not on this...Huh? I bet you didn't know that the ViP622/722 are "Broadcom" DVR's. They may use a slightly different chip that the 522/625, but if the 622/722 perform basically the same function in basically the same way, within the context of the infringed claims, then they are merely colorably different than those adjudged DVR's found infringing. That doesn't require a jury or a trial.


Then you need to tell TiVo because TiVo is missing a huge opportunity here, part of the reason why Charlie still fights on maybe (just maybe) because he knows the worst case he has to replace those old DVRs. Not easy but certainly not something impossible.



> Case in point: DISH/SATS changed the software in the 622/722 once the original eight models of DVR were found infringing. DISH/SATS was scared the original version of the 622/722 receivers infringed, so they changed it to be like the 5XX and Broadcom DVR's. That should tell you all you need to know about the likelyhood of colorable difference...


Again read what Judge Folsom said, because only the software had changed, but not the hardware, therefore...such logic will not apply to the newer DVRs, that in addition to that they are not subject to the disable order.

As far as whether Judge Folsom will even review the new design, if he refuses, he will have essentially violated his own order, which says E* must inform and obtain approval before implementing further design around. This is exactly what E* is doing following his order.

The stay of the injunction ensures that E* does not have to disable, but it does not relieve any parties' responsibility to stop infringement, that includes not just E*, but the court. I have made the point above that during the stay period, sanction may not be assessed for violation, but damages can be assessed for infringement.


----------



## scooper

Greg Bimson said:


> Is that when the contempt period ended, or is that when Judge Folsom addressed the amount of contempt damages?
> 
> Just asking, because the light went off, and he didn't issue a stay of his order. That order was stayed by the CAFC (was it 3 June?). If so, the sanctions included the period during the stay issued by the CAFC. I think once Judge Folsom gets the case back the sanctions award continues to pile, just like the infringement damages did, no?
> 
> Pleading ignorance on sanctions, but not on this...Huh? I bet you didn't know that the ViP622/722 are "Broadcom" DVR's. They may use a slightly different chip that the 522/625, but if the 622/722 perform basically the same function in basically the same way, within the context of the infringed claims, then they are merely colorably different than those adjudged DVR's found infringing. That doesn't require a jury or a trial.
> 
> Case in point: DISH/SATS changed the software in the 622/722 once the original eight models of DVR were found infringing. DISH/SATS was scared the original version of the 622/722 receivers infringed, so they changed it to be like the 5XX and Broadcom DVR's. That should tell you all you need to know about the likelyhood of colorable difference...


All I know about the VIP series DVRs is that they HAVE NOT yet been in a court about their possible infringement - Until then -you can't say one way or another. You may speculate about this theory - but I'll wait until they have been before the court before making any pronouncements.


----------



## Greg Bimson

scooper said:


> All I know about the VIP series DVRs is that they HAVE NOT yet been in a court about their possible infringement - Until then -you can't say one way or another. You may speculate about this theory - but I'll wait until they have been before the court before making any pronouncements.


I'm not making any pronouncement, other than to say:

DISH/SATS made a point of stating they changed the software on the ViP622/722 at the same time they changed the software on the infringing 501/508/510 and 522/625 models.

DISH/SATS said their entire DVR line was based on the new software during the testimony at the bench hearing for colorable difference and contempt.

DISH/SATS has put in their 10-Q with the SEC that they could indeed be forced to shut down all but about 193,000 of their DVR's.

Just because the ViP series hasn't been hauled into court doesn't mean they aren't subject to the injunction; if the court finds they are merely colorably different and infringe, then that is contempt of the injunction, meaning those DVR's should have never been sold as they are subject to the injunction.

I'm simply trying to state, without certainty, that simply because the ViP series has not been put in front of the court has no bearing. It's akin to me saying there are places where I drive 100 mph to get home from work. Just because I am not caught for an offense doesn't mean I am not breaking the law. It just takes one party to start a motion...


----------



## jacmyoung

Greg Bimson said:


> I'm not making any pronouncement, other than to say:
> 
> DISH/SATS made a point of stating they changed the software on the ViP622/722 at the same time they changed the software on the infringing 501/508/510 and 522/625 models.
> 
> DISH/SATS said their entire DVR line was based on the new software during the testimony at the bench hearing for colorable difference and contempt.
> 
> DISH/SATS has put in their 10-Q with the SEC that they could indeed be forced to shut down all but about 193,000 of their DVR's.
> 
> Just because the ViP series hasn't been hauled into court doesn't mean they aren't subject to the injunction; if the court finds they are merely colorably different and infringe, then that is contempt of the injunction, meaning those DVR's should have never been sold as they are subject to the injunction.
> 
> I'm simply trying to state, without certainty, that simply because the ViP series has not been put in front of the court has no bearing. It's akin to me saying there are places where I drive 100 mph to get home from work. Just because I am not caught for an offense doesn't mean I am not breaking the law. It just takes one party to start a motion...


Point well taken, so why don't someone call 911 and tell the officer (TiVo) that you are speeding? Oh BTW just you know in this case the officer is actually driving along the speeder so what the heck is TiVo doing not paying attention?


----------



## tivonomo

Curtis52 said:


> According to Judge Folsom, the period of contempt ended July 1, 2009.


That is a misinterpretation. The 7/1/09 date is the date of the stay pending appeal being granted. And as I said earlier, a stay only delays the enforcement of the injunction. Just like the first appeal to the CAFC, stay damages are calculated following the mandate being issued.

At that point, the $2.25 rate is a minimum in a hypothetical negotiation. It is very likely that the base 1.25 rate is increased to something like 1.75 or 2.25. So Dish will be paying $2.75 to 3.25 for the stay period from 7/1/09 to the date the stay is lifted.

And as Folsom said, the sanction of $1 is subject to being increased if E* continues to not comply with the injunction. Ergen better be very sure that the second workaround is colorably different or Dish could be looking at a $3 sanction on top of the base rate... roughly $4 to 5 per box.


----------



## jacmyoung

tivonomo said:


> ... Just like the first appeal to the CAFC, stay damages are calculated following the mandate being issued...


Right, there were only damages for the stay period, not sanctions, because for the stay period, there is no violation, only infringement to assess. When there is only infringement, only damages are assessed.

For the exact same reason, during this stay period, there is no violation to speak of, only infringement, the court must ensure no infringement, when it tells the infringer you must seek approval to implement further new design to avoid infringement, then when the infringer asks for a review for approval, the court must act on it, else the court will have contributed to the continued infringement by not allowing the infringer to implement what may be a non-infringing design.


----------



## Curtis52

Greg Bimson said:


> Is that when the contempt period ended, or is that when Judge Folsom addressed the amount of contempt damages?
> 
> Just asking, because the light went off, and he didn't issue a stay of his order. That order was stayed by the CAFC (was it 3 June?). If so, the sanctions included the period during the stay issued by the CAFC. I think once Judge Folsom gets the case back the sanctions award continues to pile, just like the infringement damages did, no?


Judge Folsom said that the period of contempt ended July 1, 2009. There is no contempt during a stay. There is nothing in effect to be contemptuous of.


----------



## Curtis52

Curtis52 said:


> According to Judge Folsom, the period of contempt ended July 1, 2009.





tivonomo said:


> That is a misinterpretation.


Judge Folsom:

"The contempt period will run from the date of the Federal Circuit's mandate following the original appeal, April 18, 2008, to the Circuit's most recent stay of the order holding EchoStar in contempt, July 1, 2009. "​


----------



## jacmyoung

Thank you for getting that out of the way Curtis.

Now I need to point out another fact. A few months ago E* informed Judge Folsom they were working on several design around options. In the 3/9/10 filing, it appeared they did submit maybe up to three design around options to Judge Folsom.

If Judge Folsom for whatever the reason cannot reivew them for approval, and E* is forced to implement any one of them, and if in the end the appeals court lift the stay of the injunction, TiVo comes back for a contempt proceeding, and they go to review the three plans, find that the one E* implemented was still infringing, but one of the plans no longer infringes, then the court cannot complain, because had the court reviewed the plans, it would have concluded one of the plans was good for implementation, and E* would not have been in violation anymore. Whatever the violation TiVo may contend, will have been caused by the court's refusal to reivew and approve.

One more thing, and this is I believe why TiVo motioned the appeals court for an immediate lift of the stay. Unlike the last hearing during the contempt proceeding, which by case law and standards was required to determine if the *design in use* was colorably different or infringing, this time it is a pre-approval request.

There is no known standard guiding such pre-approval process. Therefore it will be within Judge Folsom's own discretion to determine the course of action in the pre-approval process. He is not required to hold another hearing. As the majority said, he has years of experience on this subject, and the appeals court rather leaves the decision to him.

This may be why TiVo is quick to try to get the stay lifted, not after the appeals process concludes itself, but immediately.


----------



## tivonomo

Curtis52 said:


> Judge Folsom:
> 
> "The contempt period will run from the date of the Federal Circuit's mandate following the original appeal, April 18, 2008, to the Circuit's most recent stay of the order holding EchoStar in contempt, July 1, 2009. "​


I already told you that. I notice that you ignore all the facts that I presented after that.

Dish is in contempt until they comply with the injunction that was upheld on April 18th 2008. The reason it wasn't earlier is because the 30 days to comply with the injunction had not begun yet because E* had been granted a stay.

Now the 30 days have long since passed and E* is in contempt until they comply. It is truly simple and hardly debatable.


----------



## Curtis52

tivonomo said:


> Dish is in contempt until they comply with the injunction that was upheld on April 18th 2008. The reason it wasn't earlier is because the 30 days to comply with the injunction had not begun yet because E* had been granted a stay.


So, when did the 30 days begin? The contempt period began when the stay was dissolved, not 30 days later. You seem to be mixed up. For Dish to be in contempt after July 1, 2009, there will need to be a new contempt motion, a new contempt hearing, and a new contempt ruling, and there is no possibility that Dish will be found in contempt for the period of this stay of the injunction. There is nothing in effect to be found in contempt of.


----------



## dfd

jacmyoung said:


> If Judge Folsom for whatever the reason cannot reivew them for approval, and E* is forced to implement any one of them...


Who would 'force' E* to implement any one of them?

The court order is to disable. That is the only force I see.

If E* decides to thumb their nose at that and try another work-around w/o approval they do that at their own risk.


----------



## jacmyoung

Curtis52 said:


> ...For Dish to be in contempt after July 1, 2009, there will need to be a new contempt motion, a new contempt hearing, and a new contempt ruling.


Very good point most people don't think about it.

If after another contempt proceeding E* is again found in violation, the violation period will start from the day the stay of the injunction is lifted, not before.

E* cannot be in violation during the stay.


----------



## jacmyoung

dfd said:


> ...If E* decides to thumb their nose at that and try another work-around w/o approval they do that at their own risk.


Then do your job and review it!


----------



## tivonomo

Curtis52 said:


> So, when did the 30 days begin? The contempt period began when the stay was dissolved, not 30 days later. You seem to be mixed up. For Dish to be in contempt after July 1, 2009, there will need to be a new contempt motion, a new contempt hearing, and a new contempt ruling, and there is no possibility that Dish will be found in contempt for the period of this stay of the injunction. There is nothing in effect to be found in contempt of.


The 30 days begain April 18th, but that doesn't mean that E* gets 30 free days without contempt. Those days are specifically for complying with the injunction. And E* was found non-compliant.

For 7/1/09 through at least the date the second workaround was filed with Folsom will also be considered contempt because there was no attempt during that period to comply with the injunction.

But, TiVo will be entitled to a higher base damages than 1.25 after 7/1/09 because the contempt was confirmed. That will be addressed in Folsom's court next, unless we have a settlement first.


----------



## jacmyoung

tivonomo said:


> ...For 7/1/09 through at least the date the second workaround was filed with Folsom will also be considered contempt because there was no attempt during that period to comply with the injunction...


There is no requirement in this stay period to disable, therefore not disabling the DVR functions cannot be a violation at this time, or ever for this period.

But if there is still infringement, damages can still be assessed for this period, maybe more than $1.25, maybe $5, which is all the reason why when E* says they want to design around to avoid the supposed continued infringement, to avoid any future high damages, the court cannot say but I don't care, I am not going to review it, especially when the court said E* needed to submit it for review and approval.


----------



## tivonomo

jacmyoung said:


> There is no requirement in this stay period to disable, therefore not disabling the DVR functions cannot be a violation at this time, or ever for this period.
> QUOTE]
> 
> Got a link to that law?
> 
> I do agree that there is a new contempt consideration for dates after the second workaround, but the 1.25/mo will be more like 2.25/mo for the infringement and potential sanctions will be much more than $1/mo. Folsom warned this in his sanctions opinion.
> 
> Ergen better be damn sure the second workaround is legit... or they will be looking at $4-5 per month per box after the date they submitted the workaround #2.


----------



## dfd

jacmyoung said:


> Then do your job and review it!


All other court business should be pushed aside so that a confirmed infringer gets their next crack at it?


----------



## Curtis52

tivonomo said:


> For 7/1/09 through at least the date the second workaround was filed with Folsom will also be considered contempt because there was no attempt during that period to comply with the injunction.


There is no requirement to comply with an injunction that is stayed. That's the quintessential purpose of a stay, to signal that the injunction has no requirements in effect in need of compliance.


----------



## tivonomo

Curtis52 said:


> There is no requirement to comply with an injunction that is stayed. That's the quintessential purpose of a stay, to signal that the injunction has no requirements in effect in need of compliance.


All true, but irrelevant to the damages. Damages still apply during a stay when you lose. And under Amado v Microsoft, the contempt damages are a clear consideration for stay damages.

$2.25 is the most likely amount they pay for the stay period when you combine Amado with Folsom's last stay damage calculation.

However, I wouldn't be surprised to see TiVo ask for something higher such as $3/box. You have to base damages on E* losing on all grounds, contempt being involved, and no workaround existing until just recently.

In other words, the "bargaining position" is almost totally in TiVo's favor.


----------



## Curtis52

tivonomo said:


> All true


I know.


----------



## Maverickjoe

Do you think Charlie realizes that every day this goes on without a settlement it is costing Dish $543,000 per day! Which is almost exactly 1 cent per share profit for TiVo every 2 days!

For 9 months now, Charlie's genius infringing-design-around plan has added $146.8M in additional damages and sanctions (yes, sanctions continue to accrue from the June, 2009 Amended Injunction). That equals $1.36 cents per share for TiVo! 

If someone doesn't tackle him soon, this "strategy" will produce $195.7M per year to TiVo's bottom line, or $1.81 per share. The funniest thing is that the $195.7M per year is costing Dish shareholders a whopping 44 cents per share!


----------



## tivonomo

Maverickjoe said:


> Do you think Charlie realizes that every day this goes on without a settlement it is costing Dish $543,000 per day! Which is almost exactly 1 cent per share profit for TiVo every 2 days!


I think Charlie realizes that despite that payment that will be made to TiVo, they are still making a lot more profit that $543,000 per day by continuing to infringe on the patent as much as possible.


----------



## SaltiDawg

Maverickjoe said:


> ... The funniest thing is that the $195.7M per year is costing Dish shareholders a whopping 44 cents per share!


Let's see. Mr. Ergen owns more Echostar Stock then all the rest of us combined. He probably understands fully the consequences of the actions with which you disagree. lol


----------



## Herdfan

dfd said:


> All other court business should be pushed aside so that a confirmed infringer gets their next crack at it?


Why? They have ignored the courts order to shut down the infringing DVR's, so why should they get preferential treatment? Now if they followed the order and shut them off, then maybe give them a chance to get them back on, but not as long as they are in contempt.


----------



## dfd

Herdfan said:


> Why? They have ignored the courts order to shut down the infringing DVR's, so why should they get preferential treatment? Now if they followed the order and shut them off, then maybe give them a chance to get them back on, but not as long as they are in contempt.


100% agree. That message was in response to another message.


----------



## Lord Vader

DISH DVRs will *never* have to be disabled.

In that regard, Charlie has nothing to worry about.


----------



## Curtis0620

Lord Vader said:


> DISH DVRs will *never* have to be disabled.
> 
> In that regard, Charlie has nothing to worry about.


Not if they don't get a licensing deal with TiVo. I don't think TiVo is all that happy with DISH right now.


----------



## Greg Bimson

Yes, but now you are touching on the problem...


Maverickjoe said:


> For 9 months now, Charlie's genius infringing-design-around plan has added $146.8M in additional damages and sanctions (yes, sanctions continue to accrue from the June, 2009 Amended Injunction). That equals $1.36 cents per share for TiVo!
> 
> If someone doesn't tackle him soon, this "strategy" will produce $195.7M per year to TiVo's bottom line, or $1.81 per share.


So when discussing a corporations' earnings per share numbers, if there are one-time charges, they are left out of the equation to promote "true" EPS. One-time charges are not seen as an ongoing expense. So none of these penalties issued by the court show in the "true" EPS numbers. Many people look only at the EPS without the one-time charges.

First, if a licensing agreement were struck for the amounts listed here, that money would be an ongoing expense to DISH/SATS and would therefore end up reflected in the "true" EPS number. TiVo would have added their $1.81 per share money, and that money would have come directly out of DISH/SATS EPS.

Second, because those numbers are only for the infringing receivers, a licensing agreement would cover many more DVR's and therefore be much higher than the numbers listed.

Now you understand why an agreement hasn't been struck. Even with the fines, it still promotes a better EPS to DISH/SATS than striking a licensing agreement.


----------



## Lord Vader

Curtis0620 said:


> Not if they don't get a licensing deal with TiVo. I don't think TiVo is all that happy with DISH right now.


Happy or not, DISH's DVRs will not be disabled.


----------



## jacmyoung

Greg Bimson said:


> Yes, but now you are touching on the problem...So when discussing a corporations' earnings per share numbers, if there are one-time charges, they are left out of the equation to promote "true" EPS. One-time charges are not seen as an ongoing expense. So none of these penalties issued by the court show in the "true" EPS numbers. Many people look only at the EPS without the one-time charges.
> 
> First, if a licensing agreement were struck for the amounts listed here, that money would be an ongoing expense to DISH/SATS and would therefore end up reflected in the "true" EPS number. TiVo would have added their $1.81 per share money, and that money would have come directly out of DISH/SATS EPS.
> 
> Second, because those numbers are only for the infringing receivers, a licensing agreement would cover many more DVR's and therefore be much higher than the numbers listed.
> 
> Now you understand why an agreement hasn't been struck. Even with the fines, it still promotes a better EPS to DISH/SATS than striking a licensing agreement.


I don't think this is the issue but it is an interesting thought, maybe TiVo should have asked for a compulsory license deal from Judge Folsom, instead of an injunction back then?


----------



## Herdfan

dfd said:


> 100% agree. That message was in response to another message.


Yep. Missed the ? :blush:


----------



## Doug Higley

Sorry for the ignorance BUT did I see a TEST the other night?

About TWO something in the morning opperations of the DVR were BLOCKED and where the MUTE icon usually appears there was a RED Circle with a line through it if you tried to rewind or use other DVR functions. It was ok again the next morning when I woke up.


----------



## Jhon69

Doug Higley said:


> Sorry for the ignorance BUT did I see a TEST the other night?
> 
> About TWO something in the morning opperations of the DVR were BLOCKED and where the MUTE icon usually appears there was a RED Circle with a line through it if you tried to rewind or use other DVR functions. It was ok again the next morning when I woke up.


Between 2 AM and 3AM is when Dish connects to the DVRs and if needed does software updates or other stuff.


----------



## Jhon69

http://www.engadget.com/2010/03/08/tivo-posts-10-2m-loss-remains-on-deathwatch/


----------



## jacmyoung

Jhon69 said:


> Between 2 AM and 3AM is when Dish connects to the DVRs and if needed does software updates or other stuff.


John, you must be familiar with those old DVRs? I recall the earlier DVRs all have some external connections such as a serial port or at least a phone jack. What the sizes of the hard drives do those DVRs generally use?

We know the injunction calls for disabling *the DVR functionalities (i.e. disable all storage and playback from the hard drives) of the Infringing Proudcts...*

We know E* knows how to do DVR trickplays with external hard drives, they have done so for some of their non-DVR boxes for years. How much does it cost to get a 50GB drive these days, put it in a casing, ship it to the user, ask him to plug it in, then wait for a download?

Would it not meet the requirement of "disable all storage and playback from the hard drive of the Infringing Product"? What is left is to also demonstrate that the DVRs no longer infringe, case closed.

Not that I have conceded anything and believe the above is necessary, my point is, the bottom line in this case has always been, while TiVo's particular DVR technology is a good one, it is still a 13-year-old one. It is inconceivable that in today's world, new technology cannot easily replace the old. Ultimately it is a question of how you compete in the market, relying on old technology, or relying on continued innovation?


----------



## dfd

jacmyoung said:


> John, you must be familiar with those old DVRs? I recall the earlier DVRs all have some external connections such as a serial port or at least a phone jack. What the sizes of the hard drives do those DVRs generally use?
> 
> We know the injunction calls for disabling *the DVR functionalities (i.e. disable all storage and playback from the hard drives) of the Infringing Proudcts...*
> 
> We know E* knows how to do DVR trickplays with external hard drives, they have done so for some of their non-DVR boxes for years. How much does it cost to get a 50GB drive these days, put it in a casing, ship it to the user, ask him to plug it in, then wait for a download?
> 
> Would it not meet the requirement of "disable all storage and playback from the hard drive of the Infringing Product"? What is left is to also demonstrate that the DVRs no longer infringe, case closed.
> 
> Not that I have conceded anything and believe the above is necessary, my point is, the bottom line in this case has always been, while TiVo's particular DVR technology is a good one, it is still a 13-year-old one. It is inconceivable that in today's world, new technology cannot easily replace the old. Ultimately it is a question of how you compete in the market, relying on old technology, or relying on continued innovation?


And this would be more than colorably different how?

How much money would E* be saving by this plan compared to shipping out new/refurbished DVRs that are not included in the current list of Infringing Devices? ?Remember that they'll need to develop, test, and push new s/w as well as develop and produce the new hardware.

If this approach doesn't pass the colorably different test either I would bet the rate for infringing continues to escalate.


----------



## tivonomo

jacmyoung said:


> We know E* knows how to do DVR trickplays with external hard drives, they have done so for some of their non-DVR boxes for years. How much does it cost to get a 50GB drive these days, put it in a casing, ship it to the user, ask him to plug it in, then wait for a download?
> 
> Would it not meet the requirement of "disable all storage and playback from the hard drive of the Infringing Product"? What is left is to also demonstrate that the DVRs no longer infringe, case closed.


You can't be serious...:nono2:


----------



## Jhon69

jacmyoung said:


> John, you must be familiar with those old DVRs? I recall the earlier DVRs all have some external connections such as a serial port or at least a phone jack. What the sizes of the hard drives do those DVRs generally use?
> 
> We know the injunction calls for disabling *the DVR functionalities (i.e. disable all storage and playback from the hard drives) of the Infringing Proudcts...*
> 
> We know E* knows how to do DVR trickplays with external hard drives, they have done so for some of their non-DVR boxes for years. How much does it cost to get a 50GB drive these days, put it in a casing, ship it to the user, ask him to plug it in, then wait for a download?
> 
> Would it not meet the requirement of "disable all storage and playback from the hard drive of the Infringing Product"? What is left is to also demonstrate that the DVRs no longer infringe, case closed.
> 
> Not that I have conceded anything and believe the above is necessary, my point is, the bottom line in this case has always been, while TiVo's particular DVR technology is a good one, it is still a 13-year-old one. It is inconceivable that in today's world, new technology cannot easily replace the old. Ultimately it is a question of how you compete in the market, relying on old technology, or relying on continued innovation?


USB port/120GB HDDs.

Really doesn't matter what we believe it will be the judge that decides E* DVR fate.

I believe the same way as my previous post Tivo needs to change to survive.

I have operated both Tivo,DirecTV and Dish DVRs.I prefer Dish's 625,reason 625 has 2-120 minute live buffers.

Alot believe that if Dish loses their DVRs that customers will go elsewhere,maybe some to me it's the programming that's more important.

To bad a judge can't say "Here's a design everyone can have it,let the best product win".Competition is what makes the world go around.


----------



## Curtis52

Jhon69 said:


> believe that if Dish loses their DVRs that customers will go elsewhere,maybe some to me


Do you have any satellites in orbit?


----------



## Jhon69

Curtis52 said:


> Do you have any satellites in orbit?


And the reason for this question is?.......


----------



## Curtis52

Jhon69 said:


> And the reason for this question is?.......


Well now you've revised it. Totally different meaning.


----------



## tivonomo

Jhon69 said:


> To bad a judge can't say "Here's a design everyone can have it,let the best product win".Competition is what makes the world go around.


That's what they do in communist countries. Not much competition there. Not much invention there either because inventors can't profit from their inventions.

But if you want to move to somewhere communist, be my guest.


----------



## Maverickjoe

Charlie's gamble has now become a circular loop that will only lead to higher and higher damages and sanction awards. The problem is that it's only costing Charlie $2.25 per DVR per month today, and TiVo obviously won't settle for that rate. So Charlie's analysis says even though TiVO won't agree to it, that's the rate until they reach a settlement. Now the cycle will continue and the next rate the court sets - my guess is it will be $4.25 per month - will be the new floor for negotiating. TiVo won't accept it either and Charlie won't pay any higher, and it goes around again.

Charlie has to understand three things
1. Settling now at a rate higher than $2.25 per month is his best solution because the next stop on the train is something higher than $4.25, maybe more
2. Folsom will NEVER start a colorable difference analysis of any more design-arounds until Dish gets out of contempt with his last Order (which has now been affirmed). He will, however, entertain TiVo motions for further contempt hearings and sanctions until Dish gets the message
3. The Appeals court is done with this case, and won't have any patience when Charlie strats whining about the lower court stalling or dragging its feet on design-arounds


----------



## Jhon69

tivonomo said:


> That's what they do in communist countries. Not much competition there. Not much invention there either because inventors can't profit from their inventions.
> 
> But if you want to move to somewhere communist, be my guest.


Don't think I will have to,think it's coming to where I live.:eek2:


----------



## Jhon69

Maverickjoe said:


> Charlie's gamble has now become a circular loop that will only lead to higher and higher damages and sanction awards. The problem is that it's only costing Charlie $2.25 per DVR per month today, and TiVo obviously won't settle for that rate. So Charlie's analysis says even though TiVO won't agree to it, that's the rate until they reach a settlement. Now the cycle will continue and the next rate the court sets - my guess is it will be $4.25 per month - will be the new floor for negotiating. TiVo won't accept it either and Charlie won't pay any higher, and it goes around again.
> 
> Charlie has to understand three things
> 1. Settling now at a rate higher than $2.25 per month is his best solution because the next stop on the train is something higher than $4.25, maybe more
> 2. Folsom will NEVER start a colorable difference analysis of any more design-arounds until Dish gets out of contempt with his last Order (which has now been affirmed). He will, however, entertain TiVo motions for further contempt hearings and sanctions until Dish gets the message
> 3. The Appeals court is done with this case, and won't have any patience when Charlie strats whining about the lower court stalling or dragging its feet on design-arounds


Think if Charlie loses all court proceedings he will pay the fine and move on to the next court proceedings,but I don't see him signing nothin'.

Did you read this?.Tivo on deathwatch?.:eek2:

http://www.engadget.com/2010/03/08/tivo-posts-10-2m-loss-remains-on-deathwatch/


----------



## jacmyoung

dfd said:


> And this would be more than colorably different how?


That will answer the issue of "disable the storage and playback from the hard drive of the infringing product" language. I am not saying E* will do that, but to make a point, if you insist the letter of the disable order, the same letters can be used against you, once you chose a particular interpretation of them.

When TiVo insisted the above description of the "disable the DVR functions" as the true meaning of the order, then they may not go to a different interpretation later.



> How much money would E* be saving by this plan compared to shipping out new/refurbished DVRs that are not included in the current list of Infringing Devices? ?Remember that they'll need to develop, test, and push new s/w as well as develop and produce the new hardware.
> 
> If this approach doesn't pass the colorably different test either I would bet the rate for infringing continues to escalate.


How much does a 50GB dirive cost these days if you order in huge bulk from some surplus warehouse? $20? That will be $120M, not much if you think so far E* just paid $103M from 2006.

Remember, since colorable difference and infringement is no longer the issue with respect to the disable order, as Judge Folsom said, the disabling order has nothing to do with infringement, only the letters of the provision, that is how you then follow the exact logic and respond to it in order to get around that particular obstacle, as for colorable difference and infringement, the new software can easily tackle that too by adding the "no temporarily store said audio and vidoe data" and other measures.

The sticking point is the exact meaning of the disabling order, not colorable and infringement issues.


----------



## dfd

jacmyoung said:


> That will answer the issue of "disable the storage and playback from the hard drive of the infringing product" language. I am not saying E* will do that, but to make a point, if you insist the letter of the disable order, the same letters can be used against you, once you chose a particular interpretation of them.


If anybody is crazy enough to pull this Bill Clinton stuff, "that depends upon what your definition of the word is is", while already in contempt then there should be a stock holder lawsuit filed the next day.


----------



## scooper

dfd said:


> If anybody is crazy enough to pull this Bill Clinton stuff, "that depends upon what your definition of the word is is", while already in contempt then there should be a stock holder lawsuit filed the next day.


File it. See how far it goes when Charlie owns more stock than everybody else put together....


----------



## tivonomo

scooper said:


> File it. See how far it goes when Charlie owns more stock than everybody else put together....


A majority of shares is not required or even relevant to the issue.


----------



## dfd

scooper said:


> File it. See how far it goes when Charlie owns more stock than everybody else put together....


He has a responsibility to each and every share holder that is niether removed nor reduced because he is the largest share holder.


----------



## tivonomo

jacmyoung said:


> That will answer the issue of "disable the storage and playback from the hard drive of the infringing product" language. I am not saying E* will do that, but to make a point, *if you insist the letter of the disable order, the same letters can be used against you, once you chose a particular interpretation of them.*


This is funny. If you insist to make this argument you should at least get the letter of the injunction right. 

"disable all storage to and playback from a hard disk drive of television data"


----------



## Tower Guy

tivonomo said:


> This is funny. If you insist to make this argument you should at least get the letter of the injunction right.
> 
> "disable all storage to and playback from a hard disk drive of television data"


So, if Charlie sent a USB flash drive to use instead of a hard drive, he'd be OK?


----------



## tivonomo

Tower Guy said:


> So, if Charlie sent a USB flash drive to use instead of a hard drive, he'd be OK?


Could this thread get any further off track? :lol:

Of course not.


----------



## Luck255

Tower Guy said:


> So, if Charlie sent a USB flash drive to use instead of a hard drive, he'd be OK?


!rolling But seriously solid state drives are getting pretty big now. I've seen 256GBs!


----------



## Maverickjoe

tivonomo said:


> This is funny. If you insist to make this argument you should at least get the letter of the injunction right.
> 
> "disable all storage to and playback from a hard disk drive of television data"


1. Definitive proof that jac has not read the actual injunction and has been citing terms and conditions he makes up from whole cloth
2. Will this post finally get jac to admit he's full of it? (probably not)
3. What's the chance jac now picks up on the USB memory stick option, bubble memory expansion, carbon nanotube modules, or uranium based electro-neuron cells? Does he even have the ability to comprehend the concept of the "spirit of the law"?
4. My advice, if you're having trouble with the language it's probably not a good idea to parse it with a scalpel to show how smart you are. It usually proves the opposite.


----------



## Kheldar

Maverickjoe said:


> 1. Definitive proof that jac has not read the actual injunction and has been citing terms and conditions he makes up from whole cloth
> 2. Will this post finally get jac to admit he's full of it? (probably not)
> 3. What's the chance jac now picks up on the USB memory stick option, bubble memory expansion, carbon nanotube modules, or uranium based electro-neuron cells? Does he even have the ability to comprehend the concept of the "spirit of the law"?
> 4. My advice, if you're having trouble with the language it's probably not a good idea to parse it with a scalpel to show how smart you are. It usually proves the opposite.


"It's better to stay silent and look a fool, rather than speak and remove all doubt." -- Mark Twain


----------



## MarcusInMD

It will be best for everyone when these lawsuits are resolved. Tivo only survives on their ability to sue. Once that well dries up, tivo will more than likely dissolve for lack of innovation and reasonable pricing structure. Than the market segment can truly innovate without this leach attached to them.


----------



## jacmyoung

tivonomo said:


> This is funny. If you insist to make this argument you should at least get the letter of the injunction right.
> 
> "disable all storage to and playback from a hard disk drive of television data"


"...of the Infringing Products." Back then no one ever thought about external hard drive that would not be "of the Infringing Products", they were only concerned about the hard drives in the DVRs, wanted to ensure no storage and playback of media from that hard drive in the DVR. Again as I said technology ten years later cannot be easily visualized these days.

An external hard drive will not be a hard disk drive of the Infringing Product. At a minimum the difference is more than colorable since the physical condition of the hardware has changed. Again, I am not saying it will happen, just to show that if you insist on the exact letter, the same interpretation of the letter can be used against you.

As far as the investors, please don't treat them as three-year-old, they know the risk, E* has been reporting in their 10Ks for years of the maximum risk, the stock is at its peak, the investors just received a $2 dividend late last year, and Charlie can do it again, he has the money to do it.

The repeated warning from you folks may puzzle others, but it is a sign the suspense is killing you guys


----------



## jacmyoung

BTW, since E* motioned for one or more expedited pre-approvals of the new designs on 3/9/10, TiVo responded on 3/12/10, and today E* filed their response. Still all docs are sealed, but no indication that TiVo is opposing the actual motion itself, my guess is if there is any objection from TiVo, they are objecting to the specifics of the new design.


----------



## tivonomo

jacmyoung said:


> BTW, since E* motioned for one or more expedited pre-approvals of the new designs on 3/9/10, TiVo responded on 3/12/10, and today E* filed their response.


Where did you find that E* filed a response today? PACER has been down since Saturday.


----------



## jacmyoung

tivonomo said:


> Where did you find that E* filed a response today? PACER has been down since Saturday.


I was on it this morning.


----------



## tivonomo

jacmyoung said:


> I was on it this morning.


Thanks.


----------



## Curtis52

It will take months (years?) to determine whether the latest workaround is more than colorably different given the inevitable appeals. If it is determined that there is more than a colorable difference then a trial would be required to determine whether there is infringement which would take even more time. The injunction prohibits infringement not just a merely colorable difference. Judge Folsom isn't going to bless an alleged workaround that may infringe.


----------



## jacmyoung

Curtis52 said:


> It will take months (years?) to determine whether the latest workaround is more than colorably different given the inevitable appeals. If it is determined that there is more than a colorable difference then a trial would be required to determine whether there is infringement which would take even more time. The injunction prohibits infringement not just a merely colorable difference. Judge Folsom isn't going to bless an alleged workaround that may infringe.


There is no case law governing how Judge Folsom may conduct his pre-approval review, no requirement he must hold a hearing or do colorable difference review. The pre-approval process is not a contempt proceeding nor a bench trial, nor a new trial. I don't think anyone knows what it is because it has never been done before.


----------



## tivonomo

jacmyoung said:


> There is no case law governing how Judge Folsom may conduct his pre-approval review, no requirement he must hold a hearing or do colorable difference review. The pre-approval process is not a contempt proceeding nor a bench trial, nor a new trial. I don't think anyone knows what it is because it has never been done before.


Stop being ridiculous. Of course there is case law. And Folsom has clear discretion. Once the CAFC reinstates the injunction, you can be sure Folsom won't allow any workaround to be implemented until it is fully examined. As Folsom has already ruled by refusing to stay the injunction is that the balance of harms favors TiVo. Therefore, E* will not get a stay of the injunction during workaround proceedings. We are talking until 2011 at a minimum before anything happens along that front. AND we all know that workaround #2 is logically weaker than #1 because it won't be applicable to any DVR's in the field and most believe that the first workaround was the best effort E had.


----------



## jacmyoung

tivonomo said:


> Stop being ridiculous. Of course there is case law. And Folsom has clear discretion. Once the CAFC reinstates the injunction, you can be sure Folsom won't allow any workaround to be implemented until it is fully examined. As Folsom has already ruled by refusing to stay the injunction is that the balance of harms favors TiVo. Therefore, E* will not get a stay of the injunction during workaround proceedings. We are talking until 2011 at a minimum before anything happens along that front. AND we all know that workaround #2 is logically weaker than #1 because it won't be applicable to any DVR's in the field and most believe that the first workaround was the best effort E had.


There is no case law on pre-approval. The only possible case TiVo ever cited to support their pre-approval demand is one district case in which the infringer tried to design around and actually implemented them four times, each time after the court review was determined still infringing, only then the district court issued a pre-approval order, and the infringer gave up after that, no pre-approval was ever requested in that case.

If you look at the current expedited pre-approval request, it is indeed expedited because both E* and TiVo have already filed their motion and responses twice on each side in less than one week. TiVo clearly recognizes this being a fast track proceeding. Since the docs are sealed, we don't know the exact arguments, but we know both parties are moving in a lighting fast speed on this one, because they know Judge Folsom can rule on it any time, there is no waiting for the appeals court. The question is how Judge Folsom will rule, on that I agree with you, it is his discretion to exercise, the appeals court panel majority will not likely intervene.

If he agrees, with his years of experience that the new design no longer infringes, he needs to approve it, that is what this inform and approve is all about. If he disapproves it due to doubts about the new design, clear or not, E* will likely file an expedited review request to the appeals court, possibly combine it with their en banc review request.

This pre-approval proceeding will conlude itself way before any appeals panel rehearing and/or en banc rehearing decisions are made, i.e. before any possible lift of the stay is to take place, unless if TiVo succeeds in its own motion to lift the stay immediately, which at the earliest will take a few weeks to decide after reply and sur-replies.


----------



## tivonomo

jacmyoung said:


> There is no case law on pre-approval.


There is ample case law on complying with injunctions and the discretion that judge Folsom will have.



> If he agrees, with his years of experience that the new design no longer infringes, he needs to approve it, that is what this inform and approve is all about. If he disapproves it due to doubts about the new design, clear or not, E* will likely file an expedited review request to the appeals court, possibly combine it with their en banc review request.


You are dreaming. Folsom is allowed to take as much time is required to evaluate the workaround. Folsom will take his time, E* will not get a stay, and E* can be compensated retrocatively if their workaround somehow does not infringe. If it still infringes and is not colorably different, E* will be paying sanctions ontop of an increased base amount per box (~$5/mo) unless they agree to a conditional license with TiVo first... assuming TiVo wants to give them a license.


----------



## jacmyoung

tivonomo said:


> There is ample case law on complying with injunctions and the discretion that judge Folsom will have.


Yet none for pre-approval. Can you not understand what we are talking about at this time?



> You are dreaming. Folsom is allowed to take as much time is required to evaluate the workaround.


Then why did TiVo waste no time at all responding to each of E*'s filings? Obviously TiVo recognizes Judge Folsom can rule at any time.



> E* will not get a stay,


There is no issue of stay with respect to the pre-approval, I think you are still talking about some other subject.



> and E* can be compensated retrocatively if their workaround somehow does not infringe. If it still infringes and is not colorably different, E* will be paying sanctions ontop of an increased base amount per box (~$5/mo) unless they agree to a conditional license with TiVo first... assuming TiVo wants to give them a license.


First thing first, again please keep your eyes on the ball, the issue here is the pre-approval, and TiVo knows it, unless you see it differently then you need to tell TiVo to relax.


----------



## coldsteel

Kheldar said:


> "It's better to stay silent and look a fool, rather than speak and remove all doubt." -- Mark Twain


Can we then close this thread? Only thing I see is petty bickering...


----------



## tivonomo

coldsteel said:


> Can we then close this thread? Only thing I see is petty bickering...


Aren't you cool... taking charge like that.

Maybe you should just not read the thread?


----------



## tivonomo

jacmyoung said:


> Yet none for pre-approval. Can you not understand what we are talking about at this time?


Ultimately pre-approval is nothing different than a preliminary injunction determination. So, yes, there is plenty of precedent on this. TiVo wins on all of the factors for the injunction. The only variable we don't know is what the workaround contains and how Hurculean of an effort it took.

Given that there is no patent application so far, that means E* is licensing someone elses technology or that their new workaround is just a delay tactic.

TiVo's speedy reply means nothing to me. One can read whatever they want into it. It could mean that there is a settlement being worked out and Tivo is eager to get this over with because they are confident that they have won.


----------



## phrelin

coldsteel said:


> Can we then close this thread? Only thing I see is petty bickering...


NO, no. Don't close this thread! It hasn't even hit 500 posts yet and I have a bet with myself on at least 800 before something significant happens with the case to start a new one.


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## Curtis52

phrelin said:


> NO, no. Don't close this thread! It hasn't even hit 500 posts yet and I have a bet with myself on at least 800 before something significant happens with the case to start a new one.


Almost all of your posts have some complaint factor about the number of posts. If you can't contribute then please don't complain.


----------



## phrelin

Curtis52 said:


> Almost all of your posts have some complaint factor about the number of posts. If you can't contribute then please don't complain.


I'm not complaining. I am keeping a spreadsheet on these threads because it's fun. I enjoy the moot court you guys are running here.

And on occasion, I actually do post thoughts on the legal situation.


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## Curtis52

phrelin said:


> I'm not complaining. I am keeping a spreadsheet on these threads because it's fun. .


I'm pretty sure the board software keeps count of the posts and the best part is that it doesn't nag.


----------



## jacmyoung

tivonomo said:


> ...TiVo's speedy reply means nothing to me. One can read whatever they want into it. It could mean that there is a settlement being worked out and Tivo is eager to get this over with because they are confident that they have won.


Sure, even though I don't see the connection but at least you are sticking to the main purpose of these threads, to speculate based on the facts we know so far.


----------



## phrelin

Curtis52 said:


> I'm pretty sure the board software keeps count of the posts and the best part is that it doesn't nag.


It doesn't keep a total of all the different threads without having to do a search. And I'm not nagging. In my mind nagging would be something like telling people not to post, or telling them to post, or complaining about the quality of their posts.

I am curious though. To nag means "to find fault or complain in an irritating, wearisome, or relentless manner."

Before today in this particular thread, I had five posts among the 415 only one of which was about the number of posts though one other did make a reference towards that. Today's post was in response to


coldsteel said:


> Can we then close this thread? Only thing I see is petty bickering...


Indeed, there was some interpersonal stuff that preceded his post and threads on other subjects have been closed because that was going on. My objective was to ensure that the tread wouldn't be closed by using a sardonic comment.

I don't think I'm relentless, so do you find my relatively infrequent reference to the number of posts irritating and/or wearisome? If so, you're the OP so I'll avoid referencing the number of posts any further in this thread.


----------



## lokigray

I try to follow the course of this injunction when I can .

How is Echostar / Dish progressing with their en banc appeal ?

Has it been turned down; or has it been granted ?

Tomorrow will be two weeks since Tivo won their appeal against Echostar CAFC .


----------



## scooper

lokigray said:


> I try to follow the course of this injunction when I can .
> 
> How is Echostar / Dish progressing with their en banc appeal ?
> 
> Has it been turned down; or has it been granted ?
> 
> Tomorrow will be two weeks since Tivo won their appeal against Echostar CAFC .


still waiting - I'm not sure if Dish has even filed the request yet, but they probably will (on the last available date).


----------



## James Long

Thanks for getting back to topic ...


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## jacmyoung

scooper said:


> still waiting - I'm not sure if Dish has even filed the request yet, but they probably will (on the last available date).


Currently there is this TiVo's motion pending before the appeals court to lift the stay immediately, E* will respond to it before the deadline, I don't know if this added process will delay the en banc review request (or maybe even a panel rehearing request), or not. Supposedly the outcome of this TiVo's motion will be relevant to the planned en banc review request, so it may be possible the appeals court will rule on this TiVo's motion first before entertaining E*'s en banc review request.


----------



## SHADO 1

From Sky Report:

"The TiVo-DISH showdown is looking grim for DISH as Bernstein Research analyst Craig Moffett notes that the No. 2 DBS provider is "now negotiating with the proverbial gun to the head." (Moffett wins our personal vote for most colorful writing by an analyst.) Anyway ... Thanks to its losses in court, DISH is now faced with three options: (1) Shutting down its estimated 7mm to 8mm DVRs (a sure-fire disaster); (2) Replacing those DVRs with non-infringing units (at a cost in the billions plus huge disruptions); or (3) paying the piper (AKA TiVo) pretty much whatever it wants.

As Moffett notes, historical precedents peg DVR licensing fees at $1.00 to $2.25 per month. But, he adds, since DISH now represents the largest untapped pool for TiVo, and with those court judgments in hand, TiVo could push the price far higher. Moffett sees the $2.25/month as the floor for a settlement with a ceiling somewhere in the billions (Moffett's emphasis).

Moffett's revised model for DISH reflects a $3/month DVR licensing fee starting 3Q10."


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## phrelin

Hence, why as of February 1 Dish now charges monthly $10 for a solo DVR and $17 for a Duo DVR for one of the listed DVRs all of which are fully depreciated, which charges are the same rates a customer pays for a ViP DVR such as a new 722k.


----------



## Jhon69

phrelin said:


> Hence, why as of February 1 Dish now charges monthly $10 for a solo DVR and $17 for a Duo DVR for one of the listed DVRs all of which are fully depreciated, which charges are the same rates a customer pays for a ViP DVR such as a new 722k.


For the second DVR as the 1st DVR no matter if it's solo or duo is included with the programming package.


----------



## Lake Lover

For these many years TiVo has been fighting for justice to retain its patented property. Now, because of continued losses in the courts, the tables are turned and it is DISH that is fighting against paying the court awards which TiVo is entitled to receive. I am repulsed that there is so much support for DISH in this thread, and at the expressions that TiVo is the bad guy here.

I will have to tell you, that DISH had better settle, of course on 'reasonable' terms. No court will allow DISH to keep its ill-gotten gains. The award to TiVo will pale when compared to the punishing awards which lie ahead if this is not settled.

I personally am looking for an entry point to buy back TiVo shares if they correct below $14.


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## James Long

Lake Lover said:


> I am repulsed that there is so much support for DISH in this thread, and at the expressions that TiVo is the bad guy here.


You are proceeding from a point of view where TiVo is correct and there is no way that DISH (nor any other company) can create a DVR without violating TiVo's patent. DISH has done everything that they can to work around the work TiVo claims but through definitions TiVo keeps claiming ownership of DISH's ideas.

The hardest part is that the point TiVo is resting on is a process that is in every digital satellite receiver. Parsing data. Satellite receivers used parsing long before TiVo came up with the idea to digitize audio and video, store it in a stream similar to a satellite broadcast and parse it. If DISH could get the parser out of their receivers there would be no infringement. Unfortunately there would also be no satellite reception.

The patent is being re-examined. Perhaps DISH will end up winning that way ,,, but the idea that one small company can somehow get a patent on an idea and write that patent in such a broad way that no one else can use even dissimilar methods to come to the same result. The idea of recording TV off of a satellite should not be owned by TiVo. Only their particular method.

A lot of the support for DISH comes out of that feeling ... that the patent is too broad. There MUST be a way for DISH to do this without infringement. If the idea of recording television digitally is handed over to TiVo then all companies who have turned that idea into a product should beware of being the next target of a lawsuit. Own the process, not the idea.

There is also some frustration over the customer being the eventual loser. DISH customers here just want their DVRs to keep working. I believe most would accept paying TiVo something reasonable. Nobody likes paying unreasonable fees. Personally, I don't want either side to be ripped off by the other.


----------



## Greg Bimson

James Long said:


> You are proceeding from a point of view where TiVo is correct and there is no way that DISH (nor any other company) can create a DVR without violating TiVo's patent. DISH has done everything that they can to work around the work TiVo claims but through definitions TiVo keeps claiming ownership of DISH's ideas.


Honestly, I think that is an over-generalization. My point of view has pretty much been that DISH/SATS can work-around the patent, but they must comply with an order from the court.

It doesn't help, from my point of view, that DISH/SATS is doing everything it can to game the system. If TiVo somehow can claim weird definitions over DISH/SATS process, nothing beats the completely strained definition of following the disable order within the injunction.


James Long said:


> The hardest part is that the point TiVo is resting on is a process that is in every digital satellite receiver. Parsing data.


Well, let's go back to my favorite example. The telegraph existed for years. Now within 30 years, a method for transmitting voice instead of sounds was patented, and two parties hit the patent office the same day.

Just because a part of the process may involve "prior art" doesn't make the patent any less valid. The telephone patent using wires like a telegraph isn't any less different than the TiVo Time Warp patent parsing broadcast data, which in this court case is DISH/SATS satellite transmissions (and technically, the OTA reception as well).


James Long said:


> The patent is being re-examined. Perhaps DISH will end up winning that way ,,, but the idea that one small company can somehow get a patent on an idea and write that patent in such a broad way that no one else can use even dissimilar methods to come to the same result. The idea of recording TV off of a satellite should not be owned by TiVo. Only their particular method.


The problem is that between the patent being granted in 2001 and now, the rules have changed. The Supreme Court has ruled that the combination of two patents is not patentable, without some other "unique claim" of the invention. The Patent and Trademark Office has ruled that the software claims of the Time Warp patent are invalid because it is the combination of two patents.


----------



## James Long

Greg Bimson said:


> Honestly, I think that is an over-generalization. My point of view has pretty much been that DISH/SATS can work-around the patent, but they must comply with an order from the court.


The court approached it from both angles. If the case was solely about failure to strictly follow the injunction and disable the hard drives on the DVRs that at some defined point in time were infringing I'd fully agree with the court. DISH didn't follow that order.

Whether the order was fair or not was a question for the appeals court. A question DISH didn't ask. They were apparently so overconfident in their ability to overturn the entire verdict that they didn't pursue that problem.

The court went beyond the injunction and sought to find out if the modified receivers were really infringing. Good for DISH as it gave them a potential exit from the injunction but bad because the decision went against DISH. Following the definition the court has now it seems no modification is possible.



> It doesn't help, from my point of view, that DISH/SATS is doing everything it can to game the system.


They were doing what they could to keep their equipment running and not lose business. They were overconfident and cash strapped. If I were them, I'd be replacing as many of the listed receivers as possible - even at a loss.

Let TiVo come after the new units and spend the next decade in court, if they wish.



> The problem is that between the patent being granted in 2001 and now, the rules have changed. The Supreme Court has ruled that the combination of two patents is not patentable, without some other "unique claim" of the invention. The Patent and Trademark Office has ruled that the software claims of the Time Warp patent are invalid because it is the combination of two patents.


Best compromise scenario is that the court draws a line and says DISH violated the patent from the last time the devices were adjudicated through the date the patent office invalidated the patent. For that time DISH owes TiVo for infringement. After the date of invalidation no infringement is owed.

DISH wants to be vindicated back to day 1 ... TiVo want to be paid for the idea of recording programming on any DISH design into the future. Finding the compromise is the challenge.

If the patent is invalid and the decision holds up I don't see how TiVo can enforce the patent one day after it was ruled invalid.


----------



## phrelin

IMHO it is clear that Dish has accepted that they are going to lose on the _listed_ boxes and IMHO that is where the court will take a stand. It is to Dish's advantage to eliminate as many as listed boxes as possible by customer choice and it looks to me like they've been pretty successful over the past three years.

They have created the environment for that partly out of necessity - MPEG4 requires less bandwidth and that is what they needed, so the Eastern Arc is all MPEG4. If you want HD in any EA DMA, you will not use any listed box.

Then there are the new rates. HD is $6 a month whether you have 1 or 6 HD boxes. The first box is free and automatically that is your most sophisticated box, so basically it costs you $6 a month to upgrade. But beyond that, every old SD 508 currently in use costs the customer the same as a 612, $10 a month whether you own it or not. Every incentive exists for HD customers to dump their listed boxes.

And if you don't dump your listed box, it has been fully depreciated anyway. As of February 2010 Dish is charging you $10 a month to use your 508. How much of that could it pay TiVo before it actually hurt Dish? It wasn't that long ago that they got $5 a month from me for the second 508, then called "Addl Receiver Access Fee." So they give TiVo $5 a month, what's the big deal under the new rate structure?

And, following other threads, we learn that they are about to move some (or all) of Texas to the EA. I have a hunch that the SD feeds in those DMA's are going to end up there too. Sure, they'll have to switch some SD receivers and DVRs, maybe at no cost to the customer if pressed. But they can apply what they would have paid to TiVo towards that MPEG4 box cost and gradually the fewer listed boxes out there, the better.

Or to quote the annual report:


> A majority of our customers today, however, do not have receivers that use MPEG-4 compression and a smaller but still significant percentage do not have receivers that use 8PSK modulation. We may choose to invest significant capital to accelerate the conversion of customers to MPEG-4 and/or 8PSK to realize the bandwidth benefits sooner. In addition, given that all of our HD content is broadcast in MPEG-4, any growth in HD penetration will naturally accelerate our transition to these newer technologies and may increase our subscriber acquisition and retention costs.


Imagine if it turns out that accelerated capital investment actually decreases technology licensing costs!:sure:

EDIT: I just think that with regard to the listed boxes which include the 501, 508, 510, 522, 625, 721, 921 and the 942, we'll see more and more posts like this:


David_NC said:


> Sometimes, it takes a bit of work. After three phone calls to standard CSR's and second level reps, I sent an email to the CEO email address. I described my dissatisfaction with not treating current customers as well as new customers, the deal that Time-Warner was offering, etc. I got an email offering much more than I was initially asking, with no upfront costs, minimal commitment, etc. I now have two 722k's (installed today) instead of a 625 and a 322. I'm happy with how it turned out, as I got the receivers I wanted (HD DVR's) with the service I wanted (Dish).


And Dish has one less 625 out there.


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## Curtis52

phrelin said:


> IMHO it is clear that Dish has accepted that they are going to lose on the _listed_ boxes


Dish:


> "If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying *potential* new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, *we would be required* to eliminate DVR functionality in *all* but approximately 192,000 * digital set-top boxes in the field* and *cease distribution of digital set-top boxes with DVR functionality*."


----------



## jacmyoung

Curtis52 said:


> Dish:


You have just proven that Charlie has not accepted anything yet

Personally I think the game is far from over. The appeals decision is split, the dissent was in full force, the i4i v. MSFT case shows very likely panel rehearing or en banc review in case of such magnitude. More importanly, I don't think it was an accident the panel did not even mention the lift of the injunction. At the meantime, Judge Folsom's next decision, will be solely based on the issue of infringement, not disabling order.

The PTO's office action has already shown not only that TiVo's software claims are too broad, but even if left intact, E*'s design around already was successful. The court simply did not have a chance to review such issue because TiVo skillfully delayed the PTO response.

If one can see that it is possible to avoid infringement without losing the DVR functions, then there is really nothing to fear, the only fear is the institutional pressure itself. People can be bought, even Charlie


----------



## Herdfan

James Long said:


> There is also some frustration over the customer being the eventual loser. DISH customers here just want their DVRs to keep working. I believe most would accept paying TiVo something reasonable. Nobody likes paying unreasonable fees.


The problem is the person running E* has shown *he is unreasonable*. This could have been settled for a song back when it started. Maybe he got some bad legal advice, but it could be that he is just stubborn.

That is good when you are fighting higher programming fees as both sides need and want something and will eventually meet somewhere in the middle. Customer losses/inconveniences are small and short-lived. That is not the case here.

So how much of that frustration is also directed at E* for allowing this situation to get to this point?


----------



## Herdfan

jacmyoung said:


> The appeals decision is split, the dissent was in full force, the i4i v. MSFT case shows very likely panel rehearing or en banc review in case of such magnitude.


I have to wonder if it is the case that has the magnitude or the defendant. As large as E* is, it is just a TV supplier. People might not be able to record TV they watched. They can always switch to another provider. MSFT software, Office especially, on the other hand, runs 90% of the world's business. A much greater magnitude than just TV.

A worthy note, is that MSFT disabled the infringing software in compliance with the court order. Maybe that got them a few brownie points with the court.:eek2:


----------



## jacmyoung

Herdfan said:


> I have to wonder if it is the case that has the magnitude or the defendant. As large as E* is, it is just a TV supplier. People might not be able to record TV they watched. They can always switch to another provider. MSFT software, Office especially, on the other hand, runs 90% of the world's business. A much greater magnitude than just TV.
> 
> A worthy note, is that MSFT disabled the infringing software in compliance with the court order. Maybe that got them a few brownie points with the court.:eek2:


Not at all. In the i4i v. MSFT case, i4i had shown ample evidence of MSFT's arrogance and willfulness, yet the panel decided to rehear that issue. Parties had already known MSFT could design around the i4i patent, so the only remaining issue was the $200M award, which was a drop in the MSFT bucket, far less in magnitude compared to the TiVo v. E* case.

Whether MSFT indeed disabled the infringing software is not proven, MSFT only claims so. For you it is so easy to assume it was a fact, yet the assumption here in the TiVo v. E* case is, non-infringing software is impossible. Goes to show one's bias.


----------



## Kheldar

Curtis52 said:


> "If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying potential new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field and cease distribution of digital set-top boxes with DVR functionality."


Sounds like DISH is not excluding the VIP series from the possible disable order: "we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field" -- that suggests the VIP series are vulnerable also.


----------



## tivonomo

Kheldar said:


> Sounds like DISH is not excluding the VIP series from the possible disable order: "we would be required to eliminate DVR functionality in all but approximately 192,000 digital set-top boxes in the field" -- that suggests the VIP series are vulnerable also.


Additionally, to be abundantly clear, the current opinion will mean that Dish will not be allowed to deploy any new workaround to existing boxes. All boxes that have been deemed infringing need to be disabled.


----------



## jacmyoung

tivonomo said:


> Additionally, to be abundantly clear, the current opinion will mean that Dish will not be allowed to deploy any new workaround to existing boxes. All boxes that have been deemed infringing need to be disabled.


Not clear at all unless you quote where the court made the above abundantly clear.

Let's suppose that even if the injunction is lifted, and E* downloads a new software anyway, and later a hearing would be held and if the new design would be proven non-infringing, while E* still might be found to have violated the disabling order, the non-infringing DVRs would otherwise be allowed to continue used, I have laid out such scenario in the past already, because the court cannot assess damages on products that do not infringe, therefore no sanctions may be assessed based on damages either, in the end the most the court would assess would be the damages plus sanctions for the infringing period, plus attorney fees and costs all the way to cover even the non-infringing period during the contempt proceeding, after that the case would be over, because no new injunction would be allowed if infringement no longer exists.

The bottom line is still, whether E* still infringes or not, everything else is just PR and marketing.


----------



## dfd

jacmyoung said:


> Let's suppose ...if.. and ...and... and if ...would be... while...might be...


If wishes were horses then beggars would ride.


----------



## Shades228

Charlie won't let DVR service get disabled. He knows that in doing so he has a very large chance of losing control of his company, and getting sued by his share holders. If they are found to still infringe and he is ordered to turn them off you'll see a press release with a new agreement with TiVo.


----------



## phrelin

Curtis52 said:


> Dish:
> 
> 
> 
> "If we are unsuccessful in overturning the District Court's ruling on Tivo's motion for contempt, we are not successful in developing and deploying *potential* new alternative technology and we are unable to reach a license agreement with Tivo on reasonable terms, *we would be required* to eliminate DVR functionality in *all* but approximately 192,000* digital set-top boxes in the field* and *cease distribution of digital set-top boxes with DVR functionality*."
Click to expand...

That statement is a due diligence worst case disclosure about the lawsuit. If Dish did not note the possibility Charlie and other corporate officers would be risking major sanctions by the SEC, and potential shareholder lawsuits. On the other hand, it is carefully worded to note the fact that they are (and already have) developed and deployed new alternative technology (which they discussed in the same disclosure section previously). Further, Dish offers a distasteful choice - a license agreement with TiVo. My opinion, and it is an opinion based on trying to piece together reasons for recent rate changes, is that Dish put a rate structure in place in February that would allow them pay TiVo a substantial license fee on the listed boxes - $5 a month would be possible with no real financial impact as the listed boxes are depreciated. On the other hand:


> A majority of our customers today, however, do not have receivers that use MPEG-4 compression and a smaller but still significant percentage do not have receivers that use 8PSK modulation. *We may choose to invest significant capital to accelerate the conversion of customers to MPEG-4 and/or 8PSK to realize the bandwidth benefits sooner.* In addition, given that all of our HD content is broadcast in MPEG-4, any growth in HD penetration will naturally accelerate our transition to these newer technologies and may increase our subscriber acquisition and retention costs.


IMHO a between-the-lines reading in this "subscriber acquisition costs" discussion by management is a not very subtle implication that "Hey, we may decide to bite the bullet and replace all MPEG-2 only boxes," but, your honor, as we explained in our annual report we are doing this "to realize the bandwidth benefits sooner" to achieve compliance with federal rules they discuss in detail noting:


> We are subject to digital HD "carry-one-carry-all" requirements that will cause capacity constraints.


 And also discussed is "the pending SHVERA reauthorization legislation." Dish could achieve early compliance in many more DMAs then they do now and the most profitable way to do that would be to replace the listed boxes ASAP. Yes, they need the boxes. Right now the rates structure in place discourages both the continued use of SD MPEG-2 boxes and the use of additional multiple HD MPEG-4 boxes. And they have spent $4.9 billion on "Set-top boxes and other equipment purchased from EchoStar" during past three years, only a small part of which went towards the 1 million new subscribers.

I believe that Dish has its TiVo-related contingencies in place and Charlie knows he has probably lost on the listed boxes. So even if ultimately he prevails on the "new alternative technology," he is preparing to "send them to the dump" (my euphemism for replacing them) because there are other good reasons to replace most of them. He just needs to drag this out a bit longer.


----------



## Curtis52

phrelin said:


> My opinion, and it is an opinion based on trying to piece together reasons for recent rate changes, is that Dish put a rate structure in place in February that would allow them pay TiVo a substantial license fee on the listed boxes


I doubt TiVo would sign a contract that doesn't include all of the infringing models. That wouldn't make sense.

The injunction includes all the models that infringe. That means disablement and no workarounds without approval on all models that infringe or are not more than colorably different.

Charlie already knows that means all the models in use. That's why he told the district court at the hearing that disablement would cost more than $90 million a month in lost revenue. That's why the SEC filing said that if Dish lost the appeal they would have to disable all the DVRs in the field except for 192,000. All means all.


----------



## Curtis52

Ergen testifying in the district court:

Q IS THE FOLLOWING AN ACCURATE STATEMENT, THAT ECHOSTAR 
WOULD LOSE 90 MILLION PER MONTH IF IT HAD TO COMPLY FULLY WITH 
THE TERMS OF THE INJUNCTION, ASSUMING IT'S PROPERLY 
INTERPRETED AS REQUIRING YOU TO DISABLE THE DVR FUNCTIONALITY 
IN THE SPECIFIED PRODUCT LINES? 
A THERE WOULD HAVE BEEN A TIME FRAME THAT THAT WOULD HAVE 
BEEN AN ACCURATE STATEMENT. TODAY THAT -- 
Q NINETY -- 
A -- TODAY IT WOULD BE MORE THAN THAT. TODAY WOULD BE MORE 
THAN $90 MILLION DOLLARS. 
Q AND HOW MUCH WOULD IT BE A MONTH TODAY? 
A WOULD BE PROBABLY SEVERAL HUNDRED -- IT WOULD BE OVER 
SEVERAL HUNDRED MILLION DOLLARS. I DON'T KNOW EXACTLY. I 
DON'T HAVE THE FIGURES IN FRONT OF ME, BUT IT WOULD BE MORE 
TODAY. 
Q SEVERAL HUNDRED MILLION DOLLARS A MONTH? 
A IT MAY BE AS MUCH AS SEVERAL HUNDRED MILLION DOLLARS A 
MONTH. 
Q TWO TO THREE HUNDRED MILLION DOLLARS A MONTH? 
A WELL, I DON'T HAVE FIGURES IN FRONT OF ME -- 
Q BUT JUST GENERALLY. 
A -- BUT IT WOULD BE MORE -- IT WOULD BE -- SUFFICE IT TO 
SAY *IT WOULD BE MORE THAN $90 MILLION TODAY BECAUSE WE HAVE 
MORE DVRS TODAY* AND OUR CUSTOMERS PAY US MORE TODAY.​
Since it is generally accepted that the named DVR models are in fewer homes today, it is pretty obvious that Charlie is talking about having to disable all the models in use, not just the named models.


----------



## jacmyoung

dfd said:


> If wishes were horses then beggars would ride.


The only problem is, this TiVo's horse is already crippled and all the DVR makers can see that.


----------



## jacmyoung

Curtis52 said:


> ...All means all.


Remember who said that, and also remember the one who said that told us TiVo is the real bad guy here

This is why no shareholders can sue Charlie, he has time after time warned them of the worst case outcome of this lawsuit, the fact they continue to invest in DISH is their risk to take that you have no business to be concerned about.


----------



## scooper

Curtis52 said:


> I doubt TiVo would sign a contract that doesn't include all of the infringing models. That wouldn't make sense.
> 
> The injunction includes all the models that infringe. That means disablement and no workarounds without approval on all models that infringe or are not more than colorably different.
> 
> Charlie already knows that means all the models in use. That's why he told the district court at the hearing that disablement would cost more than $90 million a month in lost revenue. That's why the SEC filing said that if Dish lost the appeal they would have to disable all the DVRs in the field except for 192,000. All means all.


I don't know that - the only units that have been in court are the named models. I could agree that the order on "all infringing DVRs" could be construed to the named models - but not to any other models.

As James said - if Tivo thinks it's worth spending the next 10 years in court (i.e. until the expiration of this patent) trying to get the VIP series under disablement... That would work until Echostar / Dish comes out with their next generation of DVR. And continue infiniteum... And there's not a darn thing Tivo or the court could do about it....


----------



## jacmyoung

scooper said:


> I don't know that - the only units that have been in court are the named models. I could agree that the order on "all infringing DVRs" could be construed to the named models - but not to any other models.
> 
> As James said - if Tivo thinks it's worth spending the next 10 years in court (i.e. until the expiration of this patent) trying to get the VIP series under disablement... That would work until Echostar / Dish comes out with their next generation of DVR. And continue infiniteum... And there's not a darn thing Tivo or the court could do about it....


The downside of Curtis' statement is this, if he is right that what Judge Folsom must consider next is about *all* the E*'s DVRs, then Tivonomos' assertion that design around on the named DVRs is not allowed, is naturally defeated, but more importantly, since his next decision is about the new design infringement issue, if he agrees with E* it no longer infringes, and approves it, it will be all over for TiVo, TiVo will not even be able to sue E* on the new DVRs, or any DVRs E* uses.


----------



## Jhon69

Curtis52 said:


> Ergen testifying in the district court:
> 
> Q IS THE FOLLOWING AN ACCURATE STATEMENT, THAT ECHOSTAR
> WOULD LOSE 90 MILLION PER MONTH IF IT HAD TO COMPLY FULLY WITH
> THE TERMS OF THE INJUNCTION, ASSUMING IT'S PROPERLY
> INTERPRETED AS REQUIRING YOU TO DISABLE THE DVR FUNCTIONALITY
> IN THE SPECIFIED PRODUCT LINES?
> A THERE WOULD HAVE BEEN A TIME FRAME THAT THAT WOULD HAVE
> BEEN AN ACCURATE STATEMENT. TODAY THAT --
> Q NINETY --
> A -- TODAY IT WOULD BE MORE THAN THAT. TODAY WOULD BE MORE
> THAN $90 MILLION DOLLARS.
> Q AND HOW MUCH WOULD IT BE A MONTH TODAY?
> A WOULD BE PROBABLY SEVERAL HUNDRED -- IT WOULD BE OVER
> SEVERAL HUNDRED MILLION DOLLARS. I DON'T KNOW EXACTLY. I
> DON'T HAVE THE FIGURES IN FRONT OF ME, BUT IT WOULD BE MORE
> TODAY.
> Q SEVERAL HUNDRED MILLION DOLLARS A MONTH?
> A IT MAY BE AS MUCH AS SEVERAL HUNDRED MILLION DOLLARS A
> MONTH.
> Q TWO TO THREE HUNDRED MILLION DOLLARS A MONTH?
> A WELL, I DON'T HAVE FIGURES IN FRONT OF ME --
> Q BUT JUST GENERALLY.
> A -- BUT IT WOULD BE MORE -- IT WOULD BE -- SUFFICE IT TO
> SAY *IT WOULD BE MORE THAN $90 MILLION TODAY BECAUSE WE HAVE
> MORE DVRS TODAY* AND OUR CUSTOMERS PAY US MORE TODAY.​
> Since it is generally accepted that the named DVR models are in fewer homes today, it is pretty obvious that Charlie is talking about having to disable all the models in use, not just the named models.


All you have to do to confirm your theory is print the source that shows the
ViP models of DVRs are included just like the older DVR models are written down up to Dish's 625.

Any other attempt to include models of Dish's ViP DVRs that are not listed would be an attempt to discourage subscriptions to Dish using their DVR product.


----------



## jacmyoung

Jhon69 said:


> All you have to do to confirm your theory is print the source that shows the
> ViP models of DVRs are included just like the older DVR models are written down up to Dish's 625.
> 
> Any other attempt to include models of Dish's ViP DVRs that are not listed would be an attempt to discourage subscriptions to Dish using their DVR product.


You think our TiVo supporters here are trying to discourage people from signing up for the E* DVR services? If so they have done a dismal job because E* has been signing up more new subs than D* for the last two quarters.

But then again, they seem to think they can scare the DISH investors into having a riot against Charlie, so maybe you are correct


----------



## Curtis52

scooper said:


> I don't know that - the only units that have been in court are the named models. I could agree that the order on "all infringing DVRs" could be construed to the named models - but not to any other models.


I'm pretty sure that if all infringing models aren't disabled, Dish will be in contempt unless "using" means something other than what I've always thought it meant.

It's pretty obvious what "using" means to Charlie from his statements about the impact of losing the appeal.

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


----------



## phrelin

Curtis52 said:


> Ergen testifying in the district court:
> 
> Q IS THE FOLLOWING AN ACCURATE STATEMENT, THAT ECHOSTAR
> WOULD LOSE 90 MILLION PER MONTH IF IT HAD TO COMPLY FULLY WITH
> THE TERMS OF THE INJUNCTION, ASSUMING IT'S PROPERLY
> INTERPRETED AS REQUIRING YOU TO DISABLE THE DVR FUNCTIONALITY
> IN THE SPECIFIED PRODUCT LINES?
> A THERE WOULD HAVE BEEN A TIME FRAME THAT THAT WOULD HAVE
> BEEN AN ACCURATE STATEMENT. TODAY THAT --
> Q NINETY --
> A -- TODAY IT WOULD BE MORE THAN THAT. TODAY WOULD BE MORE
> THAN $90 MILLION DOLLARS.
> Q AND HOW MUCH WOULD IT BE A MONTH TODAY?
> A WOULD BE PROBABLY SEVERAL HUNDRED -- IT WOULD BE OVER
> SEVERAL HUNDRED MILLION DOLLARS. I DON'T KNOW EXACTLY. I
> DON'T HAVE THE FIGURES IN FRONT OF ME, BUT IT WOULD BE MORE
> TODAY.
> Q SEVERAL HUNDRED MILLION DOLLARS A MONTH?
> A IT MAY BE AS MUCH AS SEVERAL HUNDRED MILLION DOLLARS A
> MONTH.
> Q TWO TO THREE HUNDRED MILLION DOLLARS A MONTH?
> A WELL, I DON'T HAVE FIGURES IN FRONT OF ME --
> Q BUT JUST GENERALLY.
> A -- BUT IT WOULD BE MORE -- IT WOULD BE -- SUFFICE IT TO
> SAY *IT WOULD BE MORE THAN $90 MILLION TODAY BECAUSE WE HAVE
> MORE DVRS TODAY* AND OUR CUSTOMERS PAY US MORE TODAY.​
> Since it is generally accepted that the named DVR models are in fewer homes today, it is pretty obvious that Charlie is talking about having to disable all the models in use, not just the named models.


I agree if the "specified product line" is all the models in use. I call it whining to the judge who after all is a human and who will have to consider the customers impacted in a "shut down" versus considering the work around.


Curtis52 said:


> I doubt TiVo would sign a contract that doesn't include all of the infringing models. That wouldn't make sense.
> 
> The injunction includes all the models that infringe. That means disablement and no workarounds without approval on all models that infringe or are not more than colorably different.
> 
> Charlie already knows that means all the models in use.


Uh... well maybe that's what Charlie knows, but it apparently TiVo's attorneys didn't officially think so.

Let me quote from _TIVO'S MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION_:


> On September 8, 2006, this Court issued a permanent injunction to put an end to EchoStar's infringement of TiVo's patent and to the irreparable harm that it was causing to TiVo. The injunction's key provision was simple: "disable the DVR functionality" in all of EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 DVR receivers that had been placed with subscribers.


Seems like TiVo understands that in this case the capitalized term "Infringing Products" means the DVRs the jury found to be infringing.


Curtis52 said:


> That's why he told the district court at the hearing that disablement would cost more than $90 million a month in lost revenue. That's why the SEC filing said that if Dish lost the appeal they would have to disable all the DVRs in the field except for 192,000. All means all.


Actually, it's 192,708 units of the Infringing Products as that number comes from counting specific units of specific models. And as I said before, Charlie was whining anyway.

What I'm saying is that Charlie knows he's losing and may lose on the work around. IMHO after delaying implementation as long as he can, he's got two options in mind, preferably being able to do both:

Replace all the listed products ASAP, which is consistent with long term goals anyway.
Pay a high license fee to TiVo.
And, I really don't know how TiVo could turn down $5 a month on the listed models. That would create a situation where Dish could turn to the judge again raising enforcement questions by refusing to conform to the order, asking for some kind of mediation, while leaving TiVo subject to criticism.


----------



## Curtis52

phrelin said:


> Actually, it's 192,708 units of the Infringing Products as that number comes from counting specific units of specific models.


192,708 is correct. The number doesn't come from counting specific units of specified models. It's the number of units (no particular model) that TiVo's analyst testified that TiVo should be awarded "lost Profits" for. The jury agreed. The rest of the 4,179,253 units, TiVo was awarded a resonable royalty through 3-06.


----------



## Curtis52

phrelin said:


> Seems like TiVo understands that in this case the capitalized term "Infringing Products" means the DVRs the jury found to be infringing.


I don't think "key provision" means the same thing as "sole provision".


----------



## jacmyoung

phrelin said:


> ...
> 
> Replace all the listed products ASAP, which is consistent with long term goals anyway.
> Pay a high license fee to TiVo.
> ...


Do you see any evidence of the above happening?

To replace all the listed DVRs means E* cranking up the production of DVRs, meaning E* stock should go up, DISH stock go down, not happening.

To pay a high licensing fee means to pay above the $2.25/mo. which is unlikely when you consider Judge Rader's clear support for DISH, which shows E*'s design around attempt, as Judge Folsom himself put it, was a good faith one, even if ultimately the appeals court sides with Judge Folsom.

The perceived high DVR fees DISH charges are more indicative of what kind of subs they target. If you only need a single duo DVR for the house, there are no fees, but once you add additional DVRs much higher fees will pile on. This shows DISH targeting cable subs, which have the same fee structure.

DirecTV on the other hand do not increase DVR use cost when you add additional DVRs, they are targeting a different sub base, those that are more upscale and need more DVRs.


----------



## tivonomo

jacmyoung said:


> The downside of Curtis' statement is this, if he is right that what Judge Folsom must consider next is about *all* the E*'s DVRs, then Tivonomos' assertion that design around on the named DVRs is not allowed, is naturally defeated, but more importantly, since his next decision is about the new design infringement issue, if he agrees with E* it no longer infringes, and approves it, it will be all over for TiVo, TiVo will not even be able to sue E* on the new DVRs, or any DVRs E* uses.


My statement is not an assertion, it is the law of this case if the CAFC ruling is upheld.

The newer DVR's are subject to the doctrine of equivalents and their infringement will be the next consideration in Folsom's court if Ergen doesn't come to his senses... a settlement would be best right now for both parties.


----------



## scooper

tivonomo said:


> My statement is not an assertion, it is the law of this case if the CAFC ruling is upheld.
> 
> The newer DVR's are subject to the doctrine of equivalents and their infringement will be the next consideration in Folsom's court if Ergen doesn't come to his senses... a settlement would be best right now for both parties.


I don't think so - these newer DVRs HAVE NEVER been in front of court - If Tivo wants to go after them - they need a whole new lawsuit.


----------



## Curtis52

scooper said:


> I don't think so - these newer DVRs HAVE NEVER been in front of court - If Tivo wants to go after them - they need a whole new lawsuit.


The injunction prohibits DVRs that are only colorably different from the named DVRs in the context of the claims. Contempt of court doesn't require a new lawsuit. In fact we just had a recent example of contempt of court in this case. It was a hearing and not a new lawsuit.


----------



## phrelin

Curtis52 said:


> I don't think "key provision" means the same thing as "sole provision".


Well, this sure sounds like TiVo understands the order the way I do when they said


> On September 8, 2006, this Court issued a permanent injunction to put an end to EchoStar's infringement of TiVo's patent and to the irreparable harm that it was causing to TiVo. The injunction's key provision was simple: "disable the DVR functionality" in all of EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 DVR receivers that had been placed with subscribers.


I mean, why did they say it this way otherwise: "...to put an end to EchoStar's infringement of TiVo's patent and to the irreparable harm that it was causing to TiVo. The injunction's key provision was simple: "disable the DVR functionality" in all of EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 DVR receivers that had been placed with subscribers."

But what do I know?


----------



## Curtis52

phrelin said:


> Well, this sure sounds like TiVo understands the order the way I do when they saidI mean, why did they say it this way otherwise: "...to put an end to EchoStar's infringement of TiVo's patent and to the irreparable harm that it was causing to TiVo. The injunction's key provision was simple: "disable the DVR functionality" in all of EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 DVR receivers that had been placed with subscribers."
> 
> But what do I know?


That portion of the injunction was "key" because those are the only models TiVo filed the contempt motion for. That's why the newer models will have to be handled in a new contempt motion. At that hearing, other portions of the inhunction will be "key".


----------



## phrelin

jacmyoung said:


> Do you see any evidence of the above happening?


Yeah, I kind of do. First there is the new billing system that charges for ever DVR and does not distinguish between old SD DVRs and the newest HD models, discouraging customers from keeping old DVRs in use and from adding old DVRs to an account. Then the rate itself generates unwarranted monthly revenues on each old DVR, allowing for a large per unit payment to TiVo.

And finally, Dish is starting to move rather sizable DMAs in Texas to the EA which will require elimination of more and more old boxes. Yes, it is something they likely would have done, but it seems consistent with the statement from the Annual Financial Report:


> We may choose to invest significant capital to accelerate the conversion of customers to MPEG-4 and/or 8PSK to realize the bandwidth benefits sooner.


That language simply did not appear in the previous annual report. In that one, they simply noted:


> We have also been changing equipment for certain subscribers to free up satellite bandwidth in support of HD and other initiatives. We expect to implement these initiatives at least through the first half of 2009. We believe that the benefit from the increase in available satellite bandwidth outweighs the short-term cost of these equipment changes.


To me the critical words this year are "...choose to invest significant capital to accelerate..." You don't make statements like that unless you are giving it serious consideration. Yes, they would ultimately have made these changes, so there is nothing really lost in accelerating except perhaps some short term profits which financial analysts who can't see further ahead than next week should be a read as a warning.


----------



## jacmyoung

phrelin said:


> Yeah, I kind of do. First there is the new billing system that charges for ever DVR and does not distinguish between old SD DVRs and the newest HD models, discouraging customers from keeping old DVRs in use and from adding old DVRs to an account. Then the rate itself generates unwarranted monthly revenues on each old DVR, allowing for a large per unit payment to TiVo.
> 
> And finally, Dish is starting to move rather sizable DMAs in Texas to the EA which will require elimination of more and more old boxes. Yes, it is something they likely would have done, but it seems consistent with the statement from the Annual Financial Report: That language simply did not appear in the previous annual report. In that one, they simply noted: To me the critical words this year are "...choose to invest significant capital to accelerate..." You don't make statements like that unless you are giving it serious consideration. Yes, they would ultimately have made these changes, so there is nothing really lost in accelerating except perhaps some short term profits which financial analysts who can't see further ahead than next week should be a read as a warning.


There is no evidence from any of what you quoted that the move had anyting to do with the lawsuit. Yes I can see the logic to connect the dots if you will, I have no problem with that, but still there is no evidence they are connected.

The reason I am skeptical of the connection is just like Curtis said, old or new, infringement must stop, just by moving from the old to the new does not prove non-infringement. It will however likely force TiVo to prove it in a new trial yes, so to that extent I can see your point. But to me that will be a backup option, not indicative of what E*'s current plan is.


----------



## jacmyoung

tivonomo said:


> My statement is not an assertion, it is the law of this case if the CAFC ruling is upheld.
> 
> The newer DVR's are subject to the doctrine of equivalents and their infringement will be the next consideration in Folsom's court if Ergen doesn't come to his senses... a settlement would be best right now for both parties.


Your assertion is whatever Judge Folsom may or may not approve next, will have nothing to do with the 8 named DVRs because they cannot be designed around. Your such assertion is defeated if we accept Curtis' own assertion that whatever Judge Folsom may or may not review next, will include all the DVRs, old or new.

I am only pointing out that for the two of you on the same side, your differenent contentions are contradicting each other, that's all.

It is very clear at this point, whatever Judge Folsom will review next, will be the new design(s) for the 8 named DVRs for the most part. You and Curtis take slightly different approaches, I pointed out the irony in them. Don't blame me, blame Curtis.


----------



## phrelin

You all are forcing me to go back and read the injunction because I'm old and can't trust my memory. The injunction in part says:


> ...the Court thereby enters judgment for Plaintiff against Defendants for infringement of U.S. Patent No. 6,233,389 ("'389 patent"), claims 1, 5, 21, 23, 32, 36, 52, 31 and 61 ("the Infringed Claims") by Defendants' following DVR receivers (collectively the "Infringing Products"): DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.
> 
> Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products.


What don't I understand? The disable order clearly applies to the "Infringe Products" which are clearly defined and don't include any newer DVR's.

Yes, there is a separate paragraph that says:


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


That's the only place the order mentions "colorably different" in the order.

Exactly how someone in that group of people or in the courtroom can determine whether newly offered ViP922 Sling Equipped DVRs "are only colorably different therefrom in the context of the Infringed Claims" by looking at them sitting on a shelf is a mystery. So I'm assuming that Dish's "officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof" have, since 2006 been selling non-listed DVRs in the clear belief that they are more than colorably different. as the proper remedy might be incarceration of some clerk in a dealership who was aware that she quit selling the listed DVRs but who sold a ViP722DVR.

In other words the disable order applies to (clearly defined by model number) the "Infringing Products." The "only colorably different therefrom" term applies only to the "stop selling" order and no one selling the new DVRs really knows if they are "only colorably different therefrom."

Hence my belief that Charlie is focusing his energies on the clearly defined "Infringing Products" which do not include anything else.


----------



## jacmyoung

phrelin said:


> ...Exactly how someone in that group of people or in the courtroom can determine whether newly offered ViP922 Sling Equipped DVRs "are only colorably different therefrom in the context of the Infringed Claims" by looking at them sitting on a shelf is a mystery.


Exactly how the courts could determine the modified 8 named DVRs were only colorably different was a mystery to me too, when you consider that E* removed the key functions that even the PTO said was necessary, not just likely, but necessary to achieve the invention described by the software claims, they were the start code detection and indexing. All TiVo had to tell the courts was hey those were irrelevant to the software claims, only one out of the three appeals judges was able to see that nonsense.

So to answer your question, yes it is possible, anything is possible. I will agree that for any DVRs that are not on the disabling order list, it will be more difficult for TiVo to try them in a contempt proceeding, so likely they will have to be tried in a new suit.



> Hence my belief that Charlie is focusing his energies on the clearly defined "Infringing Products" which do not include anything else.


That I agree. But here is the problem with your analysis of the E* 10K, you lumped two issues together, which should have been mutually exclusive.

The first issue was the supposed high monthly DVR fees Charlie charges, according to you, will be used to cover a supposed licensing agreement with high monthly fees paid to TiVo. The second issue was the supposed replacement of all the 8 named DVRs in the field with newer DVRs.

But if you have the first, there will be no need for the second. A licensing agreement will naturally allow DISH to continue to use the DVRs, rendering any replacement activities unnecessary, for the purpose of this litigation that is.


----------



## Curtis52

phrelin said:


> I'm assuming that Dish's "officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof" have, since 2006 been selling non-listed DVRs in the clear belief that they are more than colorably different.


I'm sure that Dish knows whether the software processes in the ViP models are essentially the same as in the named models as far as the context of the infringed claims is concerned. Dish pretty well admitted it in the SEC filing and in the sworn testimony Charlie gave at the contempt hearing. They've pretty well lost any hope of the "hey, we had no idea" defense.


----------



## phrelin

jacmyoung said:


> That I agree. But here is the problem with your analysis of the E* 10K, you lumped two issues together, which should have been mutually exclusive.
> 
> The first issue was the supposed high monthly DVR fees Charlie charges, according to you, will be used to cover a supposed licensing agreement with high monthly fees paid to TiVo. The second issue was the supposed replacement of all the 8 named DVRs in the field with newer DVRs.
> 
> But if you have the first, there will be no need for the second. A licensing agreement will naturally allow DISH to continue to use the DVRs, rendering any replacement activities unnecessary, for the purpose of this litigation that is.


Yes, but for the purpose of Charlie's peace of mind, replacing them all ASAP instead of continuing to pay TiVo is a goal worth achieving although it can't be achieved soon enough - for Charlie that is.


----------



## phrelin

Curtis52 said:


> I'm sure that Dish knows whether the software processes in the ViP models are essentially the same as in the named models as far as the context of the infringed claims is concerned. Dish pretty well admitted it in the SEC filing and in the sworn testimony Charlie gave at the contempt hearing. They've pretty well lost any hope of the "hey, we had no idea" defense.


I really don't see it that way. And while I have no doubt that my 508s in 2004 had an infringing design, I'm not sure about the later software download to them, and I really don't think the design in the ViP's infringes. But it doesn't matter what I think, it will matter what the courts think at some time in the future if TiVo pursues it.


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## jacmyoung

Curtis52 said:


> I'm sure that Dish knows whether the software processes in the ViP models are essentially the same as in the named models as far as the context of the infringed claims is concerned. Dish pretty well admitted it in the SEC filing and in the sworn testimony Charlie gave at the contempt hearing. They've pretty well lost any hope of the "hey, we had no idea" defense.


Unfortunately you continue to ignore what Judge Folsom had said in his own opinion, software alone was not enough, hardware had to also change. While I disagree with this contention, Judge Folsom cannot have it both ways either. If TiVo later points out to the judge that look, E* admitted the newer DVRs used the same modified software, E* can point out to the judge, but as you said, the hardware is now different.


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## jacmyoung

phrelin said:


> Yes, but for the purpose of Charlie's peace of mind, replacing them all ASAP instead of continuing to pay TiVo is a goal worth achieving although it can't be achieved soon enough - for Charlie that is.


First off, let's make sure whether Charlie is indeed "continuing to pay TiVo" is not settled yet, so far he only paid TiVo once, a payment ruled on back in 2006, made at the end of 2008.

Secondly, I am not saying that you are wrong for concluding that he was preparing two options concurrently just in case, only that the two will not happen at the same time. My point is, by concluding that Charlie is preparing to pay TiVo a high monthly fee, and also to replace those 8 named DVRs, is quite a stretch. More than likely he is planning to replace the old DVRs as part of the plan to reclaim the MEPG2 bandwidth to be used more efficiently with MPEG4.

His DVR fee plan, as I pointed out earlier, is actually not high at all, if you only use a single Duo-DVR for your house, which can support two TVs/DVRs independently, you are not charged for the DVR use at all. Most people can easily avoid paying the second or third high DVR fees. So the notion that he is asking the subs to cover the supposed high fees to be paid to TiVo in the future, at the very minimum is not a very good hypothesis.


----------



## Curtis52

phrelin said:


> I really don't think the design in the ViP's infringes.


How are the ViP software processes different from the named DVRs as far as the context of the infringed claims is concerned? Or is it just a matter of faith with no special knowledge?


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## James Long

Curtis52 said:


> How are the ViP software processes different from the named DVRs as far as the context of the infringed claims is concerned? Or is it just a matter of faith with no special knowledge?


Using the loose definition of "parse" that the court is following, how can any satellite receiver that is required to parse an MPEG stream just to be a satellite receiver be non-infringing unless it does not function as a DVR (store and play back programming)?

From a TiVo world view, everything infringes.


----------



## phrelin

Curtis52 said:


> How are the ViP software processes different from the named DVRs as far as the context of the infringed claims is concerned? Or is it just a matter of faith with no special knowledge?


Yep, just blind faith after reading the extensive discussion here.:sure:


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## jacmyoung

James Long said:


> Using the loose definition of "parse" that the court is following, how can any satellite receiver that is required to parse an MPEG stream just to be a satellite receiver be non-infringing unless it does not function as a DVR (store and play back programming)?
> 
> From a TiVo world view, everything infringes.


To be fair, E*'s own experts' testimonies about the PID filter meeting the "parse" definition, but more importantly E*'s failure to address any additional claim elements beyond the word "parse", helped doom their chance during the contempt proceeding, even though during the appeal they tried to cure the deficiencies, only one of the three judges saw it.

But Judge Folsom is an experienced judge in this TiVo patent, he said himself in his opinion that because E* did not address any additional claim elements other than the word "parse", he did not have to go further. Now it is E*'s chance to address all those other claim elements, such as "temporarily store", "extract", "obtain", "convert" and "fill"...


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## Greg Bimson

Curtis52 said:


> I'm sure that Dish knows whether the software processes in the ViP models are essentially the same as in the named models as far as the context of the infringed claims is concerned. Dish pretty well admitted it in the SEC filing and in the sworn testimony Charlie gave at the contempt hearing. They've pretty well lost any hope of the "hey, we had no idea" defense.


One of the important points lost in this whole discussion is the original ViP622/722.

During the stay of the original injunction, DISH/SATS downloaded new software to the 501/508/510 and the 522/625 receivers, attempting to workaround the patent. They also downloaded new software to the ViP622/722. It is obvious that the ViP series contained pretty much the same hardware and media switch capability, so to make sure the "fat finger of accusation" wasn't pointed at the ViP series, the software was changed, as well. Upon download, the software in the ViP series (which uses the Broadcom chips) was probably quite similar to what the court defines as "Broadcom DVR's" (the 522/625). It isn't a leap of faith to assume DISH/SATS believed the original configuration of the ViP series infringed. It isn't a leap of faith to assume that when the modification was downloaded to the ViP serise that it isn't much different than the modifications made to receivers found to infringe again.

TiVo simply tried to take the easy way out and have contempt found for failure to disable as stated in the injunction. Judge Folsom (upon DISH/SATS defense they no longer infringed and TiVo's belief that those devices still infringe) ended up delaying the decision regarding infringement of the disable clause on the face in order to pursue the infringement evaluation of receivers that had the software workaround. That lengthened the proceedings. To the point that if only "prima facie" contempt was considered, the challenge to the patent at the PTO would never have gotten as far. DISH/SATS has been attempting to delay the black cloud by finding the silver lining (such as a complete dismissal of the patent) so that they don't have to enter into a license agreement at all.

Upon lifting the stay of the current injunction, DISH/SATS is to disable functionality within the eight named models. The ViP series is clear and free. Seems to me if DISH/SATS wants to push this another mile, TiVo will have to go after the ViP series once the injunction becomes active.

However, I do believe that the new built-in DVR fees DISH/SATS charges is to finally settle with TiVo. It makes no sense to increase pricing and charge that much for multiple DVR's unless DISH/SATS plans on using that as their piggy-bank to pay TiVo.


----------



## Herdfan

Greg Bimson said:


> The ViP series is clear and free. Seems to me if DISH/SATS wants to push this another mile, TiVo will have to go after the ViP series once the injunction becomes active.


Do I understand correctly that this will be in the context of a contempt hearing and not a new trial?


----------



## Greg Bimson

Greg Bimson said:


> The ViP series is clear and free. Seems to me if DISH/SATS wants to push this another mile, TiVo will have to go after the ViP series once the injunction becomes active.





Herdfan said:


> Do I understand correctly that this will be in the context of a contempt hearing and not a new trial?


Sure. DISH/SATS is prohibited from selling not only the eight named models, but also those models not more than colorably different from those eight named models. TiVo simply needs to map the ViP series against the claim chart for the 522/625. If there aren't substantial differences, then contempt will be found.

Thinking this through for a moment, once the injunction becomes active, DISH/SATS is required to obtain approval to implement a workaround. So what is to be done if DISH/SATS implements a workaround on the ViP series without court approval?


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## HobbyTalk

At this point the VIP series does not fall under this action so there should be nothing preventing them from pushing out new updates to the VIP series.


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## Greg Bimson

But one must only look at the injunction:


> It is FURTHER ORDERED that Defendants shall inform this Court of any further attempt to design around the '389 Patent and shall seek approval from this Court before any such design-around is implemented.


The injunction simply prohibits implementation of a design-around of the Time Warp patent until court approval is granted. If DISH/SATS creates and implements a design around on the ViP series without court approval, that could also be considered contempt. Technically, it wouldn't be an issue until TiVo goes after the ViP series for the other issues relating to the injunction.


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## jacmyoung

HobbyTalk said:


> At this point the VIP series does not fall under this action so there should be nothing preventing them from pushing out new updates to the VIP series.


Very good point, which is why the contempt proceeding is only limited to the 8 named DVRs, sure TiVo can also try to include all the new DVRs, but they will likely be pushed into a new trial. As I said TiVo cannot afford to go to a new trial, E* already proved they did not infringe on the hardware claims, and the software claims are under rejection by the PTO, TiVo has nothing to go for in a new trial at this point.


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## Curtis52

HobbyTalk said:


> At this point the VIP series does not fall under this action so there should be nothing preventing them from pushing out new updates to the VIP series.


If by "this action" you are talking about the contempt ruling, the injunction isn't limited to units found to be in contempt. The injunction applies to the named models and any other DVR that is only colorably different in the context of the infringed claim. If the ViP series was/is only colorably different, they are subject to the injunction and the workaround prohibition. If it can be shown that the ViP series was/is only colorably different then Dish will be in contempt and downloading an unapproved alleged workaround won't be a defense for not disabling them as soon as the stay is lifted.


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## HobbyTalk

Greg Bimson said:


> But one must only look at the injunction:The injunction simply prohibits implementation of a design-around of the Time Warp patent until court approval is granted. If DISH/SATS creates and implements a design around on the ViP series without court approval, that could also be considered contempt. Technically, it wouldn't be an issue until TiVo goes after the ViP series for the other issues relating to the injunction.


Since they have not been proven to infringe on the patent there can be no contempt at this point. So the question is, which would be more costly? If the VIP would somehow be found to violate the patent would the contempt fines be more then licensing fees during that time? Of course that also brings in maybe years more of appeals since they are not named receivers  Can TiVo afford to wait that long while worrying about the patent being found invalid? It might be in best interest for TiVo to license at a very reasonable rate now (if they even can) to get money while they can before the patent is found invalid. It isn't only Charlie who is betting the farm on a hopefully positive outcome of a decision... Tommy is all in on the patent decision.


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## Curtis52

HobbyTalk said:


> So the question is, which would be more costly? If the VIP would somehow be found to violate the patent would the contempt fines be more then licensing fees during that time? Of course that also brings in maybe years more of appeals since they are not named receivers


I'm missing the logic here. Named receivers found to be in contempt can't be appealed? As far as I know, any court action can be appealed. The fact that they aren't named by model number isn't significant if the ViP models are found to be essentially identical (only colorably different) in the context of the claim. Almost everyone agrees that they use the same software processes. Charlie has already as much as admitted that they'd rightfully have to be disabled too if the stay is lifted. The inverse of that is that Dish would rightfully be in contempt if they don't disable them. It'd be willful contempt too. $$$


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## dgordo

Anyone who doesn't think that Judge Folsom would look at the VIP series if TiVo requests it is failing to understand the broad latitude a court has to enforce its decrees.


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## jacmyoung

HobbyTalk said:


> ...Tommy is all in on the patent decision.


Tommy just sold 300K of his TiVo holdings so maybe he has less of the farm to bet on now?


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## BNUMM

dgordo said:


> Anyone who doesn't think that Judge Folsom would look at the VIP series if TiVo requests it is failing to understand the broad latitude a court has to enforce its decrees.


These same people need to read about the "Doctrine of Equivalents".


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## HobbyTalk

dgordo said:


> Anyone who doesn't think that Judge Folsom would look at the VIP series if TiVo requests it is failing to understand the broad latitude a court has to enforce its decrees.


Are you saying that if he found them to be no more then colorably different that decision couldn't be appealed?


----------



## Herdfan

jacmyoung said:


> E* already proved they did not infringe on the hardware claims, TiVo has nothing to go for in a new trial at this point.


No they didn't. The hardware issue was *remanded* back because of Judge Folsom's instructions. It is just sitting there waiting for a new trial.

Do you understand what remanded means?


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## Curtis52

HobbyTalk said:


> Are you saying that if he found them to be no more then colorably different that decision couldn't be appealed?


What would be the basis of the appeal? That the appeals court approved injunction doesn't prohibit DVRs that are only colorably different? I'm pretty sure it does.


----------



## Greg Bimson

jacmyoung said:


> Very good point, which is why the contempt proceeding is only limited to the 8 named DVRs, sure TiVo can also try to include all the new DVRs, but they will likely be pushed into a new trial.


I don't understand.

TiVo can "try to include all the new DVRs" within a new contempt proceeding, and just like in the prior contempt proceeding, a colorable difference test and a finding of infringement is all that needs to be evaluated. It cannot simply be dismissed that the ViP series is more than colorably different. If it performs basically the same functions in basically the same manner against the claims of the patent, it is both an infringement and a contemptuous act.


HobbyTalk said:


> Since they have not been proven to infringe on the patent there can be no contempt at this point. So the question is, which would be more costly? If the VIP would somehow be found to violate the patent would the contempt fines be more then licensing fees during that time? Of course that also brings in maybe years more of appeals since they are not named receivers


Look, this is getting ridiculous. The injunction states, paraphrasing, that DISH/SATS is not allowed to sell or use products that are no more than colorably different from the eight models found infringing. Just because they might not be "named" does not mean they are clear of the injunction.

As to any fees and the worry about TiVo, they've already picked up a $100 million payday, and are close to receiving another $300 million more. TiVo also has all of the negotiating power the moment appeals are exhausted, as eight models of DVR are supposed to have their functionality disabled. It is over a 90 percent chance that an appeal will not be heard. That means the case should be back to Judge Folsom by the end of April.


HobbyTalk said:


> Are you saying that if he found them to be no more then colorably different that decision couldn't be appealed?


Sure it can be appealed. And it will use the same standard that is always used, which was also used in this last contempt appeal. And judging by the last go-around, it wouldn't take too long to go through the appeals process.


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## jacmyoung

Greg Bimson said:


> I don't understand...


Until such time TiVo actually brings the VIP DVR issue to the court, let's not pretend it will happen. We can argue about the likelihood of it happening or if so when. I have already listed the reasons why TiVo has yet touched on the VIP issue.

Back when the first appeals court decision was issued, the TiVo supporters were very sure TiVo could bring the hardware claims issue back, but it never happened, not because TiVo could not do so, the appeals court said they could, but why didn't TiVo decide to go there during the contempt proceeding? Like the issue with any new VIP DVRs, the hardware claims issue will likely have to be resolved by a new jury if TiVo wants to go there. Any likelihood of going to a new trial will not be good for TiVo because as I said this TiVo's horse has no legs to stand on in a new trial, their hardware claims were not infringed on, and their software claims are under rejection by the PTO.

They have nothing to go by in a new trial, it will be unwise to do anything that may lead to a new trial, TiVo must avoid a new trial at all cost at this time. To do so they must stick to the 8 named DVRs.


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## Greg Bimson

jacmyoung said:


> Until such time TiVo actually brings the VIP DVR issue to the court, let's not pretend it will happen. We can argue about the likelihood of it happening or if so when. I have already listed the reasons why TiVo has yet touched on the VIP issue.


The reason why "TiVo has yet touched on the VIP issue"? Because they were forced to file a contempt motion against DISH/SATS for failure to disable functionality as ordered. TiVo only went for the low-hanging fruit.


jacmyoung said:


> Like the issue with any new VIP DVRs, the hardware claims issue will likely have to be resolved by a new jury if TiVo wants to go there.


Basis, please.

The reason why TiVo didn't go after the hardware claims: the modification made it so the receivers no longer use the hardware claims. Infringement is no longer present against the hardware claims. There is no use of a media switch, so there isn't infringement of the hardware claims.

The reason TiVo went after contempt of the disable clause? It was the fastest way to get DISH/SATS to the table. Unless of course DISH/SATS is trying to set a record for the amount of times they can be found in contempt.


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## Curtis52

Greg Bimson said:


> TiVo only went for the low-hanging fruit.


The proverbial bird's nest on the ground. Conservation of energy.


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## Martin Tupper

jacmyoung said:


> Until such time TiVo actually brings the VIP DVR issue to the court, let's not pretend it will happen. We can argue about the likelihood of it happening or if so when. I have already listed the reasons why TiVo has yet touched on the VIP issue.
> 
> Back when the first appeals court decision was issued, the TiVo supporters were very sure TiVo could bring the hardware claims issue back, but it never happened, not because TiVo could not do so, the appeals court said they could, but why didn't TiVo decide to go there during the contempt proceeding? Like the issue with any new VIP DVRs, the hardware claims issue will likely have to be resolved by a new jury if TiVo wants to go there. Any likelihood of going to a new trial will not be good for TiVo because as I said this TiVo's horse has no legs to stand on in a new trial, their hardware claims were not infringed on, and their software claims are under rejection by the PTO.
> 
> They have nothing to go by in a new trial, it will be unwise to do anything that may lead to a new trial, TiVo must avoid a new trial at all cost at this time. To do so they must stick to the 8 named DVRs.


Tivo has not yet brought up the VIP issue or revisited the hardware issues for the simple reason that *they don't think that they'll need to*. 

If the E*'s infringement of the software claims is sufficient go get an injunction, and the injunction is about to actually to be enforced, why bother with the hardware claims at this point? 
Way back at the beginning of the process, it made sense to go after everything. But at this juncture, TiVo doesn't need a belt _and _suspenders. The software claims appear to be sufficient to accomplish the intended goal.

Similarly, if the injunction is actually about to be enforced on the named DVR's, why risk muddying the waters _now _by attempting to roll additional models into the mix. Why risk derailing the impending injunction at this point? That would make no sense.
If E* is forced to disable the named DVRs and Charlie still won't agree to TiVo's terms, _then _TiVo will up the stakes by filing a motion of contempt regarding the VIPs.


----------



## dgordo

HobbyTalk said:


> Are you saying that if he found them to be no more then colorably different that decision couldn't be appealed?


Anything can be appealed.


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## Curtis52

Martin Tupper said:


> TiVo doesn't need a belt _and _suspenders.


Dish needs a cup.


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## HobbyTalk

dgordo said:


> Anything can be appealed.


And that was my point, how long can they hold out? Until the patent is found to be invalid?


----------



## jacmyoung

Greg Bimson said:


> The reason why "TiVo has yet touched on the VIP issue"? Because they were forced to file a contempt motion against DISH/SATS for failure to disable functionality as ordered. TiVo only went for the low-hanging fruit...


And if the higher-up fruits require the reach by the use of the software claims again (as in a new trial), TiVo cannot risk using them, because at this time the software claims are no longer useful. If they go to a new trial, the case will be suspended until such time TiVo can overcome the rejection by the PTO. TiVo cannot take that risk.



> The reason why TiVo didn't go after the hardware claims: the modification made it so the receivers no longer use the hardware claims. Infringement is no longer present against the hardware claims. There is no use of a media switch, so there isn't infringement of the hardware claims.


There wasn't infringement even when there was the media switch, that is why TiVo did not want to address the hardware claims, they knew they had nothing on those claims.



> The reason TiVo went after contempt of the disable clause? It was the fastest way to get DISH/SATS to the table. Unless of course DISH/SATS is trying to set a record for the amount of times they can be found in contempt.


And TiVo failed. No one is at the table yet. If DISH were actually at the table and ready to pay, as even some of the DISH posters here were hypothesizing, Tom Rogers would have waited a few days or weeks to sell his shares, because the stock would have shot up another 50% very soon.


----------



## Curtis52

HobbyTalk said:


> And that was my point, how long can they hold out? Until the patent is found to be invalid?


The recent contempt award ensures that the question is moot. The huge award for contempt of the named models answers the "how long can they hold out" question (decades). Meanwhile, how lomg can Dish hold out with all of its DVRs disabled? Days?


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## jacmyoung

Martin Tupper said:


> ... The software claims appear to be sufficient to accomplish the intended goal...


TiVo from almost the very beginning told Judge Folsom they would not want to address the hardware claims. On the other hand, the software claims have been rejected by the PTO since almost one year ago, by definition they are no longer sufficient.



> Similarly, if the injunction is actually about to be enforced on the named DVR's, why risk muddying the waters now by attempting to roll additional models into the mix. Why risk derailing the impending injunction at this point? That would make no sense.
> If E* is forced to disable the named DVRs and Charlie still won't agree to TiVo's terms, then TiVo will up the stakes by filing a motion of contempt regarding the VIPs.


Fair argument, so maybe we shall wait and see?


----------



## jacmyoung

Curtis52 said:


> ...Meanwhile, how lomg can Dish hold out with all of its DVRs disabled?


Tell us when all of its DVRs were ordered to be disabled? We don't even know when the 8 named DVRs will actually be ordered to be disabled yet.


----------



## James Long

jacmyoung said:


> Tell us when all of its DVRs were ordered to be disabled? We don't even know when the 8 named DVRs will actually be ordered to be disabled yet.


Were the named DVRs not ordered disabled in the first injunction?
What do you expect? Another injunction yet this one "I really mean it"!

I agree on the unnamed DVRs. TiVo will need to make an argument to get them disabled. DISH certainly isn't going to voluntarily disable VIPs. It is hard enough to get them to disable the actual named DVRs they have been specifically ordered to disable!


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## jacmyoung

James Long said:


> Were the named DVRs not ordered disabled in the first injunction?...


Let me clarify, since we are talking about the post contempt/appeal period, my question assumed the specific time period. Let's see how long it will take the appeals court to lift the stay, that is if it will lift the stay, then we may be able to get warmed up to the possibility of disabling anything else.


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## phrelin

As I said, Charlie is not going to disable anything. Just wait and watch.


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## Lord Vader

I've been saying that before you, son.


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## dgordo

HobbyTalk said:


> And that was my point, how long can they hold out? Until the patent is found to be invalid?


It would be several years faster than needing a new trial.


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## VDP07

Lord Vader said:


> I've been saying that before you, son.


Nuh uh...He said it first. I heard em.


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## Paul Secic

jacmyoung said:


> Tell us when all of its DVRs were ordered to be disabled? We don't even know when the 8 named DVRs will actually be ordered to be disabled yet.


Barrons said that Dish made a bid for TIVO.. Just a rumor for now.


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## Curtis0620

Paul Secic said:


> Barrons said that Dish made a bid for TIVO.. Just a rumor for now.


Last ditch effort to avoid paying Licensing fees, which are climbing by the day.


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## scooper

If I would have been Charlie - that's the first thing I would have done when Tivo filed their initial lawsuit. Poison pill or not....


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## Curtis52

scooper said:


> If I would have been Charlie


Tense? grammar?


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## James Long

phrelin said:


> As I said, Charlie is not going to disable anything. Just wait and watch.





Lord Vader said:


> I've been saying that before you, son.


Armed marshals, with guns. I probably said that before both of you.

The DVRs will remain active. How DISH will accomplish that goal permanently is still to be determined. There are plenty of theories that could play out. So far DISH has accomplished that goal the simple way - defiance.

It is probably time to try a different method.


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## jacmyoung

Curtis0620 said:


> Last ditch effort to avoid paying Licensing fees, which are climbing by the day.


Or a clear message that he is not going to pay any licensing fee, depending on how you look at it. I wouldn't call it the last ditch effort, the efforts at the court front are on-going and time consuming. TiVo clearly also understands that if Judge Folsom approves the new design for implementation, it will be the end for TiVo, which was why they motioned the appeals court for an immediate lift of the stay, against the normal legal procedure, especially when you consider the split decision was designed for a rehearing.

If DISh and TiVo merge, believe it or not, it will fulfill the very first thing I have ever said about the two companies, I said they should have worked together, they were like-minded in terms of technologies and innovations, and a perfect union.

But I will not hold my breath.


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## tivonomo

jacmyoung said:


> Tell us when all of its DVRs were ordered to be disabled? We don't even know when the 8 named DVRs will actually be ordered to be disabled yet.


Has Dish ever argued that the ViP's used different technology? Or maybe "next generation" technology? In fact, they argued to the CAFC during the stay briefing that all of the DVR's (except for the 192,000 or so that are excluded) would need to be disabled.


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## tivonomo

jacmyoung said:


> TiVo clearly also understands that if Judge Folsom approves the new design for implementation, it will be the end for TiVo, which was why they motioned the appeals court for an immediate lift of the stay, against the normal legal procedure, especially when you consider the split decision was designed for a rehearing.


That is another far-reaching statement by you. TiVo motioned for the stay to be lifted because the opinion did not address that issue.

They also motioned the CAFC on the legal expenses as well because the majority opinion did not address that either. I assume they are rushing to get that through because they are scared also...:grin:


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## jacmyoung

tivonomo said:


> Has Dish ever argued that the ViP's used different technology? Or maybe "next generation" technology? In fact, they argued to the CAFC during the stay briefing that all of the DVR's (except for the 192,000 or so that are excluded) would need to be disabled.


They argued that the PID filter met the "parse" limitation too, it did not stop them from saying they were wrong and the jury did not buy it, while Judge Folsom disagreed, as well as the majority on the appeals panel, Judge Rader did agree with E* on that one.

The question is then, how should the court determine what needs to be disabled? According to what E* said what they feared would be disabled? Or according to the facts and the law?

E* never argued the VIPs used different technology, or the same technology, because as unbelievable as you may think, no one has yet ever addressed anything other than the 8 named DVRs, not TiVo, not E*, not the court.

I have no doubt if there is ever a time in the future TiVo would bring the VIPs into the fold, TiVo will use E*'s statements against E*, but statements alone do not prove anything, actual facts must be contested by the experts in a hearing. The only thing I know is, after that hearing, Judge Folsom can no longer say but software change alone is not enough, because the hardware does not change, nor can he say E* had violated the disabling provision anyway.


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## tivonomo

jacmyoung said:


> E* never argued the VIPs used different technology, or the same technology, because as unbelievable as you may think, no one has yet ever addressed anything other than the 8 named DVRs, not TiVo, not E*, not the court.


Considering E* has taken the time to try and patent their first workaround, I would expect E* to have a patent for the ViP technology if it is in fact different. A quick search @ the USPTO shows that they do not own any patent on alternative technology (or patent application). So, this fact combined with E*'s own statement to the CAFC tells us that there is no new technology on the ViP's.

Of course that doesn't stop E* from trying to develop something new, but existing boxes with the same technology will eventually be requested to be disabled just like the named models. And of course these will not be eligible for a download once they are deemed infringing under the Doctrine of Equivalents.


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## phrelin

tivonomo said:


> ...once they are deemed infringing under the Doctrine of Equivalents.


Eh? I don't think so. But we can beat that one to death again.


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## jacmyoung

tivonomo said:


> Considering E* has taken the time to try and patent their first workaround, I would expect E* to have a patent for the ViP technology if it is in fact different. A quick search @ the USPTO shows that they do not own any patent on alternative technology (or patent application). So, this fact combined with E*'s own statement to the CAFC tells us that there is no new technology on the ViP's.
> 
> Of course that doesn't stop E* from trying to develop something new, but existing boxes with the same technology will eventually be requested to be disabled just like the named models. And of course these will not be eligible for a download once they are deemed infringing under the Doctrine of Equivalents.


Not every new technology needs a new patent, besides, there is no requirement E* must abandon the previous design around, they just need to improve on it. As I said already, even if the PID filter is still used, E* failed to make the point that the PID filter does not temporarily store any data, therefore many following claim elements are no longer met.

Judge Folsom clearly pointed out that since E* only argued on the "parse" limitation, nothing else, he did not need to review further, but if E* can prove the additional elements are no longer met, Judge Folsom can look at them still. I suspect the 2nd or the 3rd design around are just adding some more steps to address what TiVo had raised during the contempt proceeding, hopefully also pointing out a few elements they had already got the TiVo expert's admission but not raised in the final argument.

Again, in the next review and approval, only the issue of infringement will be relevant, not the issue of disabling, since there is currently no standing order in effect to require any disablement.


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## deaincaelo

Anyone know what happened with Echostar's counter-suit?


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## scooper

deaincaelo said:


> Anyone know what happened with Echostar's counter-suit?


If you're talking about the one they filed in Delaware - it got moved to the East Texas court - I think it's on hold right now.


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## jacmyoung

scooper said:


> If you're talking about the one they filed in Delaware - it got moved to the East Texas court - I think it's on hold right now.


That case is a declaratory judgment suit for non-infringement, not really a counter lawsuit because E* is not accusing TiVo of infringement. In the TiVo v. ATT/MSFT and TiVo v. Verizon cases, the defendants are actually counter-suing TiVo for infringement.


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## phrelin

jacmyoung said:


> That case is a declaratory judgment suit for non-infringement, not really a counter lawsuit because E* is not accusing TiVo of infringement. In the TiVo v. ATT/MSFT and TiVo v. Verizon cases, the defendants are actually counter-suing TiVo for infringement.


Yeah, maybe Charlie could shop around the courthouse in Texas for a new lawyer.


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## jacmyoung

phrelin said:


> Yeah, maybe Charlie could shop around the courthouse in Texas for a new lawyer.


I have been implying this for some time but the rumor about him bidding for TiVo, if true, giving me second thought. It appears the most unlikely move at this very moment to do so, when the consensus in the street is that he has lost it all and is on the verge of paying big money to TiVo for a long time to come, that TiVo will from now on reach stardom, blah blah...

Does it even make sense for him to think about having total control over TiVo at any price at this time? Who at TiVo in their right mind would even give a damn? This move almost borders on insanity, unless of course it has always been his plan A lot of what I have talked about E* lawyers' screw-ups are so obvious it is hard to believe they actually were so sloppy.

Just doing my part to keep the topic interesting

Think about it, if he can convince TiVo that TiVo can lose it all if Judge Folsom approves his plans, he will actually be able to end this thing with TiVo claiming victory, at the same time allowing him to carry that victory on, in effect having an edge against all other DVR makers...


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## scooper

Even as much as this would be a positive note, I can't imagine Charlie / Echostar / Dish being THAT devious...


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## HarveyLA

_Washington, D.C. (March 25, 2010) -- TiVo's stock yesterday rose four percent on rumors that Dish Network was preparing to buy the DVR company, according to Barron's._

http://www.tvpredictions.com/tivodish032510.htm


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## Curtis52

The price of poker has gone up:

Based on my understanding of the complex agreement, in the event that Dish (or another acquirer) were to accumulate more than 15% of TiVo's shares (or even announce the intention to acquire more than 15% of the shares), it would trip a provision that would entitle the other TiVo shareholders to a special $60 per share dividend  This means that if Dish were to forcibly acquire TiVo, it would cost them $71 per share or close to $7.5 billion (more than Dish's entire market cap.) If Dish tried to pay for the transaction in stock, TiVo shareholders would be entitled to $13.5 billion ($131 per share) in the buyout.

With TiVo's stock currently trading at $1.15 billion ($11 per share), this type of premium would be too bitter of a pill for Dish to swallow.​
link


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## phrelin

Gee, I don't know. The _*rumor*_ could be based on something. TiVo is very attractive for Charlie right now. I say that not because of the technology. They have the TiVo v. ATT/MSFT and TiVo v. Verizon lawsuits going on which would really appeal to Charlie's apparent second biggest interest - expensive complex lawsuits.:sure:


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## jacmyoung

Curtis52 said:


> The price of poker has gone up:
> 
> Based on my understanding of the complex agreement, in the event that Dish (or another acquirer) were to accumulate more than 15% of TiVo's shares (or even announce the intention to acquire more than 15% of the shares), it would trip a provision that would entitle the other TiVo shareholders to a special $60 per share dividend  This means that if Dish were to forcibly acquire TiVo, it would cost them $71 per share or close to $7.5 billion (more than Dish's entire market cap.) If Dish tried to pay for the transaction in stock, TiVo shareholders would be entitled to $13.5 billion ($131 per share) in the buyout.
> 
> With TiVo's stock currently trading at $1.15 billion ($11 per share), this type of premium would be too bitter of a pill for Dish to swallow.​
> link


The question is of course not what the TiVo individual investors will have to say, but whether Charlie can convince TiVo board that TiVo risks a total loss of all the supposed gains they had got so far, if Judge Folsom approves his plans.

Keep in mind TiVo is mostly owned by institutional investors, the giant funds, whose money come from investors such as your average 401K plan buyers, they will have no clue how the money is spent, the giant funds will speak for them. Also keep in mind Tivo CEO had just sold his TiVo holdings, so can other TiVo execs and TiVo inventors. BTW I have no issue with them reaping the benefit of the lawsuit.

The bottom line is, after having their own bottom line well covered already, they are now in the position to determine how to move forward, how much confidence do they have in that Judge Folsom will never approve E*'s new designs for implementation. Remember, they had already put in place a small "poison pill" for themselves two months ago in the event of "change of control". So far the only such possible "change of control" appears to be this rumored Charlie's bid on TiVo.

I know it is all speculation, but since you guys are all into speculations and connecting the dots, I am only happy to tag along


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## jacmyoung

BTW, Judge Folsom just stayed his own injunction today till 4/30/2010 based on E*’s alternative request, while E* petitions the appeals court. As I speculated, it appears E* might seek not just en banc review but panel rehearing and they appear confident that either or both rehearings will be granted. Judge Folsom adopted E*'s alternative request by staying his own injunction as a result. What that means is TiVo may not get the appeals court to lift the stay immediately.

For some reason I could not upload the PDF file, will have to try it later today.

Judge Folsom said in his order he has no time to do the new design review for now. The fact he agreed to stay his own order is a clear sign that he recognizes the need for the review and approval to avoid infringement. He just has no time to do so for now.

The consequence of this statement is, if ultimately the new designs are proven non-infringing, but E* cannot implement them due to court’s own constraint, the court cannot go back to punish E* for not implementing them.

For all this time Judge Folsom never once even considered the possibility of staying his own order, he provided compelling justifications for not staying his own order. It is significant IMO now he agreed to stay his own order to stop TiVo from trying to lift the stay by the appeals court.


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## jacmyoung

phrelin said:


> ...Charlie's apparent second biggest interest...


The right word is "hobby".

Seriously though, I don't think he will go after the others even if he gets to have TiVo. He already crippled TiVo's patent. But the synergy alone will be a significant benefit for both, not to mention having the cloud removed from above him.

Think about these two words: TiVo and Sling, they pretty much cover everything that is projected to happen for the next decade.


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## dgordo

Once a company adopts a poison pill, I believe 50% of the shareholders have to vote in favor of removing it. The board can't make that decision without a shareholder vote.


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## jacmyoung

dgordo said:


> Once a company adopts a poison pill, I believe 50% of the shareholders have to vote in favor of removing it. The board can't make that decision without a shareholder vote.


That was my point, correct me if I am wrong but much more than 50% of TiVo is held by institutional investors, it is easy for them to do legal analyses to determine the risk.

Still having trouble uploading the file, the file I downloaded might have some thing in it not allowing the upload, but I finally had a chance to read it carefully, the order supports my theory that Judge Folsom will have full control of his review and approval process, he will stay his own injunction until such time he can get around doing his own review, which ever the way he will do it.


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## dgordo

Yahoo finance says that 91% of tivo shares are held by institutional investors and mutual funds.


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## phrelin

jacmyoung said:


> Think about these two words: TiVo and Sling, they pretty much cover everything that is projected to happen for the next decade.


Glad you brought that up. I was going to mention it. So far, I love my Slingbox Pro HD feeding my 722's output. If all the HD TiVos and other DVRs can be hooked up to these things.... Well, the synergy is a natural.


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## jacmyoung

phrelin said:


> If all the HD TiVos and other DVRs can be hooked up to these things...


How about another word for it called "built-in"? Does 922 ring the bell?

Judge Folsom has sent a clear message he will not touch E* until he gets to review the new design and decide whether to approve it or not. In addition there is the separate process of the petition for rehearing. With the unusually strong support of E* by Judge Rader, E* stands the chance to have that rehearing and even have the majority decision reversed.

Now exists two separate possibilities things can go totally wrong for TiVo. The question is, will TiVo be as stubborn as Charlie? Let's wait and see.


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## jacmyoung

BTW, TiVo's motion to the appeals court to lift the stay immediately, had already been denied on 3/24/10, the day before Judge Folsom issued his own stay of his own injunction. Based on the CAFC Pacer log, TiVo filed its motion on 3/10, E* replied on 3/18, TiVo then replied on 3/24, the same day after TiVo's reply, the motion was denied.

I was waiting for the CAFC motions page to post its action, it seems the appeals court simply denied TiVo's motion without even a comment.


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## Lake Lover

A word about "poison pills":

"Poison Pills" are usually implemented by boards of directors under the guise of protecting shareholders, but are more accurately constructed so as to protect entrenched management and directors of target companies. The action of a board in implementing a pill is often a good indication that the board feels a threat of an impending takeover attempt. 

Unless controlled in the by-laws of a corporation, they may usually be instituted and subsequently withdrawn by action of the board without shareholder involvement. 

Acquisition bent individuals or corporations have successfully fought poison pills by appealing directly to shareholders to force the board to withdraw, and thru the courts, claiming that the pill is causing irreparable harm to shareholder values.

Rather than having control vested in many small stockholders, having a high percentage of company stock controlled by funds or institutions may work to facilitate either the approval or defeat of a takeover attempt, based on the merits.


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## jacmyoung

Lake Lover said:


> A word about "poison pills":
> 
> "Poison Pills" are usually implemented by boards of directors under the guise of protecting shareholders, but are more accurately constructed so as to protect entrenched management and directors of target companies. The action of a board in implementing a pill is often a good indication that the board feels a threat of an impending takeover attempt.
> 
> Unless controlled in the by-laws of a corporation, they may usually be instituted and subsequently withdrawn by action of the board without shareholder involvement.
> 
> Acquisition bent individuals or corporations have successfully fought poison pills by appealing directly to shareholders to force the board to withdraw, and thru the courts, claiming that the pill is causing irreparable harm to shareholder values.
> 
> Rather than having control vested in many small stockholders, having a high percentage of company stock controlled by funds or institutions may work to facilitate either the approval or defeat of a takeover attempt, based on the merits.


Thank you for the comment.

We need to have one thing in mind, this takeover bid is just a rumor, although a very logical one. Also, no one is saying a deal will work out even if such bid is real. In any possible settlement discussions, parties must view the risks of not having a settlement posed on one side and another.

I have just shown several recent court developments that supported my previous theories that the appeals court panel probably knew what they were doing when they did not even mention if the stay would be lifted, and it will be entirely at Judge Folsom's own discretion when the review of the new design should take place, and if he shall approve it for implementation, while making such decision, he will likely continue to stay his injunction until a resolution is reached by him.

There was no reason for him to stay his own injunction while the appeals court's stay was also in effect, other than making it clear that nothing can happen until his review of the new design is concluded.


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## Greg Bimson

jacmyoung said:


> There was no reason for him to stay his own injunction while the appeals court's stay was also in effect, other than making it clear that nothing can happen until his review of the new design is concluded.


But I hear that TiVo requires discovery on any of the design-around options, which may lengthen proceedings regarding the design-around. I suspect Judge Folsom may lengthen his stay of the injunction if discovery comes into play.


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## Curtis0620

This guy thinks that this stay is to give them time to reach a licensing deal.

http://www.multichannel.com/article/450755-Dish_Faces_April_30_Deadline_In_TiVo_Case.php


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## jacmyoung

Greg Bimson said:


> But I hear that TiVo requires discovery on any of the design-around options, which may lengthen proceedings regarding the design-around. I suspect Judge Folsom may lengthen his stay of the injunction if discovery comes into play.


I read that too, a logical request BTW. As long as Judge Folsom will stay his own injunction while the review takes place, there is no hurry because it will be independent of the appeals court rehearing process.


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## jacmyoung

Curtis0620 said:


> This guy thinks that this stay is to give them time to reach a licensing deal.
> 
> http://www.multichannel.com/article/450755-Dish_Faces_April_30_Deadline_In_TiVo_Case.php


Or reach that buyout deal, which is the only thing rumored at this time.


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## Jhon69

jacmyoung said:


> Or reach that buyout deal, which is the only thing rumored at this time.


That to me would make sense since Charlie is going to have to pay what? 300 million?.Take that money and instead use it to help Dish purchase Tivo.


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## BNUMM

If what jacmyoung says is true about Tivo being a failing company, why would Charlie want to buy it?


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## Jhon69

BNUMM said:


> If what jacmyoung says is true about Tivo being a failing company, why would Charlie want to buy it?


I can only think of 300 million reasons?.


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## phrelin

Curtis0620 said:


> This guy thinks that this stay is to give them time to reach a licensing deal.
> 
> http://www.multichannel.com/article/450755-Dish_Faces_April_30_Deadline_In_TiVo_Case.php


I agree with him, provided TiVo would accept a monthly briefcase load of money only for the listed boxes. It would be hard to imagine Charlie agreeing to pay license fees on the ViP922 the month it comes out.


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## dgordo

It would be ironic if charlie bought tivo and then tivo's patents were voided because of his work.


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## jacmyoung

phrelin said:


> I agree with him, provided TiVo would accept a monthly briefcase load of money only for the listed boxes. It would be hard to imagine Charlie agreeing to pay license fees on the ViP922 the month it comes out.


I will take what he said with a giant grain of salt because he did not understand Judge Folsom's order at all. I don't blame him because it was somewhat confusing.

The judge listed the arguments made by both parties, but in the end actually went his own way. It appeared as if Judge Folsom was accepting E*'s alternative request to stay his own injunction until 30 days after the resolution of the en banc petition, but that is not the case.

Judge Folsom's only reason for the stay of his injunction was because he was booked solid for March and the good part of April. The implication was the earliest he could get to this new design review will be the end of April, which explains why he stayed his injunction to 4/30/10. There is no indication at all that after 4/30/10 the injunction will be effective, because even if he lifts his own stay then, the stay by the appeals court will likely still be there because the en banc vote will likely take much more time.

Then look at TiVo's immediate response after Judge Folsom's order. TiVo immediately requested the judge to stay TiVo's own response for a discovery until further notice. Meaning TiVo understood what the judge's order meant, it meant nothing will happen until he has time to deal with the new design review, he will continue to stay the injunction as long as the review is not concluded, which prompted TiVos's quick response to delay their own response.

No where in the order, as well as TiVo's own response, can lead to the conclusion that somehow Judge Folsom had given E* till 4/30/10 to settle with TiVo or else. I expect E* to take its own sweet time now to work on its en banc petition, which will likely not be resolved before 4/30/10.

The question is then, will Judge Folsom be able to have time toward the end of April to actually review and make his decision on the new design? It is a possibility, and TiVo cannot let that happen, which was why TiVo immediately requested that the judge stay their own response for discovery until further notice, which is a way to ensure the judge will not pull a surprise and approve the new design before 4/30/10, upon his own review at the end of April.

This review process will likely begin after 4/30/10, while the judge will continue to stay the injunction until the issue is resolved.


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## jacmyoung

dgordo said:


> It would be ironic if charlie bought tivo and then tivo's patents were voided because of his work.


Is there a way to withdraw reexamination request by the requester?

Regardless, if Charlie wants to buy TiVo, it will not be this patent but to get rid of this lawsuit, and also to acquire the TiVo name, along with many other TiVo's patents, and of course the million plus TiVo subs.


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## jacmyoung

phrelin said:


> I agree with him, provided TiVo would accept a monthly briefcase load of money only for the listed boxes. It would be hard to imagine Charlie agreeing to pay license fees on the ViP922 the month it comes out.


BTW, one of the other things revealed in Judge Folsom's order is, E*'s new design will only address the 625 DVRs, not the 5XX DVRs, the implication is, E* has already decided to phase out those really old DVRs, only the 625s will remain in service.

Therefore in a supposed licensing negotiation, if there is such a thing, the only DVRs at issue will be the 625 DVRs still in the field. But reading from TiVo's own response to Judge Folsom's stay order, it appears there is no licensing negotiation going on, because TiVo will seek full discovery for the new design plan for the 625 DVRs, only that it will happen after Judge Folsom finds time for himself to do so. But again there is no guarantee that the judge will actually order a full discovery or a hearing. We'll find out soon if and when Judge Folsom responds to TiVo's request.


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## BNUMM

Jhon69 said:


> I can only think of 300 million reasons?.


He would spend billions to save millions. Give Charlie some credit. He is a smart man.


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## jacmyoung

BNUMM said:


> He would spend billions to save millions. Give Charlie some credit. He is a smart man.


That's a good one! I am sure you knew he meant 300 million big ones, but still yours is a great response.

I want to point out one thing if there is still some misconception about this Judge Folsom's stay order, like that analyst contended that the stay till 4/30/10 was Judge Folsom forcing E* to settle with TiVo by that time or else, pointing a gun to E*'s head so to speak.

E* asked Judge Folsom for a stay of his own injunction at least 30 days after the conclusion of the en banc decision, TiVo opposed such request arguing that the appeals court had already stayed the injunction therefore there was no need for Judge Folsom to do it himself. As a result, his agreement with E* to stay his injunction, against TiVo's wish, cannot possibly be interpreted as an order in TiVo's favor, against E*.

If there is any settlement discussion going on (not saying there is), this order clearly helps E* because E* asked for it, TiVo opposed it, and E* got it. Interpreting it otherwise will lead to the conclusion that E* had asked Judge Folsom to issue an order agaisnt E*, and for some dumb luck TiVo got it.


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## Jhon69

BNUMM said:


> He would spend billions to save millions. Give Charlie some credit. He is a smart man.


That is true so it will depend if he feels it's worth it to continue?.If so game on!


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## deaincaelo

scooper said:


> If you're talking about the one they filed in Delaware - it got moved to the East Texas court - I think it's on hold right now.


No, the one from 2005 claiming infringement on Echostar's DVR patents.

Any settlement would most likely include a provision preventing E* from enforcing their IP against Tivo, and maybe a non compete.

Assuming triplicate damages E* would be better off paying the fine rather than comply- as long as they have a work around by 2013. That doesn't factor in the value of E*'s IP or any possible non compete clause.

I've said it before, but it would be terribly unfair if both companies had valid IP, but only one of them got to enforce it.


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## jacmyoung

I don't think we should get too far ahead of ourselves talking about worst case yet. The simple fact is, Judge Folsom has changed his stance. He never ever had considered staying his own injunction, additionally as TiVo pointed out, there is no need for him to do so at this time because the injunction is stayed by the appeals court already.

But he to a large degree accepted E*'s request and stayed his own order. Judge Folsom does not appear someone who would easily change his direction out of mercy or out of the blue, he had to have read some things that convinced him to change his stance. Could be Judge Rader's opinion, could be the PTO's opinion, could be what the little he had read of E*'s 2nd new design plan. But the mere fact that he had moved away from his long held position not to stay his own injunction, should not be ignored by E* or TiVo.


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## Curtis52

deaincaelo said:


> No, the one from 2005 claiming infringement on Echostar's DVR patents.


The court stayed the lawsuit in 2006 pending completion of the reexaminations of the three patents involved. The USPTO has preliminarily rejected all of the claims in each patent.


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## jacmyoung

Curtis52 said:


> The court stayed the lawsuit in 2006 pending completion of the reexaminations of the three patents involved. The USPTO has preliminarily rejected all of the claims in each patent.


And the table seems turning a little now, all the sudden Judge Folsom is putting off his own order, but more importantly, TiVo now rushes to basically tell the judge, hold on for a minute, we are in no hurry, please don't make a drastic decision at the end of April, let's talk about all the details once you have time to talk about them

Judge Folsom does not easily stay his own injunctions. When a judge stays his/her own injunction, that is because the party subject to the injunction has demonstrated that the injunction might not be necessary, especially when the injunction has already been stayed by the higher court therefore the lower court stay action is unnecessary. E* succeeded in telling Judge Folsom that his injunction might not be needed anymore, and TiVo knew it.


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## phrelin

jacmyoung said:


> And the table seems turning a little now, all the sudden Judge Folsom is putting off his own order, but more importantly, TiVo now rushes to basically tell the judge, hold on for a minute, we are in no hurry, please don't make a drastic decision at the end of April, let's talk about all the details once you have time to talk about them
> 
> Judge Folsom does not easily stay his own injunctions. When a judge stays his/her own injunction, that is because the party subject to the injunction has demonstrated that the injunction might not be necessary, especially when the injunction has already been stayed by the higher court therefore the lower court stay action is unnecessary. E* succeeded in telling Judge Folsom that his injunction might not be needed anymore, and TiVo knew it.


Or maybe he's just tired of listening to TiVo's attorneys. :sure:


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## deaincaelo

Curtis52 said:


> The court stayed the lawsuit in 2006 pending completion of the reexaminations of the three patents involved. The USPTO has preliminarily rejected all of the claims in each patent.


May I ask for a link? I don't know where to look that sort of thing up.


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## jacmyoung

phrelin said:


> Or maybe he's just tired of listening to TiVo's attorneys. :sure:


Or maybe Judge Folsom is pointing a gun at TiVo's head?

Not that I think Judge Folsom's stay order was pointing a gun at someone, but since it appears the TiVo supporters had accepted the assertion that his stay order was him pointing a gun at someone, why not look at the timing and speculate who he might be pointing the gun at?

We know throughout this litigation, it has been Charlie who had refused to talk to TiVo. We also know the only talk we heard so far is Charlie making this offer to buy TiVo, and TiVo has not responded yet, i.e. Charlie is waiting for TiVo to respond to his offer.

Now TiVo might say what the #$%^ are you talking about? Go to hell! Or TiVo might say no, here is our counter offer, or TiVo could say hey not bad we'll take it.

But regardless, the parties are waiting for TiVo to respond, so consider the timing, if we can even imaging Judge Folsom's stay order was pointing his gun at someone, shouldn't the logic lead to the speculation that the gun is pointing at TiVo?


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## Curtis52

deaincaelo said:


> May I ask for a link? I don't know where to look that sort of thing up.


You could look at one of the annual reports at http://www.tivo.com/abouttivo/aboutushome/index.html


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## jacmyoung

TiVo just among other things raised Tom Rogers severance pay in the event of his departure. Consider the fact he just sold his TiVo shares recently, and the rumor that Charlie had made his offer to buy TiVo. Can the dots be connected? I don't know, just asking.


----------



## jacmyoung

E* today filed its response to TiVo’s request to delay the pre-approval process until such time they may seek a discovery, after Judge Folsom has time to attend to this matter.

As I have said, E* contends that it is not necessary to have a discovery and hearing in order to determine the merits of the new design. E* has already provided TiVo with the new code, highlighted the items TiVo said still infringed during the contempt proceeding, but now removed in the 2nd design around. TiVo has enough time to file their opposition to E*’s pre-approval motion in time for Judge Folsom’s review by the end of April, he can then make up his mind.

This much seems clear, there is no discussion at the table regarding any licensing deals. E* is determined to implement the new design, TiVo wants to delay such implementation as long as they can for obvious reasons.

The stay of the injunction will clearly go through its own course until the en banc decision is finalized, that will be at least several months from now. At the meantime, Judge Folsom should have time to make his decision, one way or the other.

I might have exceeded my allowed upload capacity, if anyone else wishes, feel free to upload both TiVo and E*’s filings.


----------



## Lake Lover

jacmyoung said:


> TiVo just among other things raised Tom Rogers severance pay in the event of his departure. Consider the fact he just sold his TiVo shares recently, and the rumor that Charlie had made his offer to buy TiVo. Can the dots be connected? I don't know, just asking.


Studying the SEC insider trading reports, Rogers had acquired 350,000 shares on 7-1-2005, and 700,000 shares on 2-17-2009, and a few small buys (under 100K). It was his pattern to sell off between 28,000 and 38,000 shares every July, 2006 thru 2009. Then the selling picked up this year, with him selling 72K in February and the big sale of 300,000 shares on March 11, 2010. After that last sale Rogers reported he still owned directly 627,825 shares of TiVo.

I agree it is troubling that right after a big legal win, he would sell a third of his shares. But I temper my misgivings a little bit when I consider that I sold my very small position the afternoon of March 4 because I figured a bird in the hand is worth two in the bush!  The bird in the hand adage may be what motivated Tom Rogers and the other five insiders to sell heavily after the court victory.

As to the rumour of Dish offering to acquire TiVo, I doubt that any such discussions could have occurred thru March 11th because if anything at all was brewing then Rogers would have been precluded from trading the stock.


----------



## dfd

Lake Lover said:


> As to the rumour of Dish offering to acquire TiVo, I doubt that any such discussions could have occurred thru March 11th because if anything at all was brewing then Rogers would have been precluded from trading the stock.


Please do not add any verifiable facts in to this discussion. We're all about wild speculating, hypothesizing, and conjecturing here.


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## jacmyoung

Lake Lover said:


> ...As to the rumour of Dish offering to acquire TiVo, I doubt that any such discussions could have occurred thru March 11th because if anything at all was brewing then Rogers would have been precluded from trading the stock.


The rumor was very recent, certainly after 3/11. Also keep in mind the "small poison pill" TiVo put in for its execs two months ago, that the execs would be paid "in the event of change of control", as if TiVo had achieved its performance goals, even if it did not...


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## tivonomo

dfd said:


> Please do not add any verifiable facts in to this discussion. We're all about wild speculating, hypothesizing, and conjecturing here.


Don't worry, those facts were incomplete and therefore inaccurate.

First, Rogers has only sold shares in the past to pay taxes on vested restricted shares of stock. Someone needs to study the SEC reports a bit more carefully. 

Also another big correction. Rogers currently holds 627,825 shares *and *2.78 million options. So the 300,000 shares he sold were closer to 10% of his total position not "a third of his shares" as Lake Lover claimed.


----------



## jacmyoung

tivonomo said:


> Don't worry, those facts were incomplete and therefore inaccurate...


What facts are we talking about? The fact that TiVo is trying to delay E*'s effort to avoid infringement? The fact that the only "discovery" TiVo can possibly seek is already provided to them, it is called the "new software code"? The fact E* has already highlighted the specific infringing codes they said are removed from the previous software code?

What else does TiVo need at this time? Are there anything else that can even be produced by E* at this time? The new software has not been complied yet, not downloaded yet, E* just need TiVo to look through the code to provide its response. Maybe TiVo will look at the code and agree that some of the key codes are removed, but there are those other codes still there need removed, and E* can even agree to remove them so the new design can be implemented.

But if TiVo refuses to look at the code, instead says no, we want to wait as long as we can, we want to make sure E* does not get to void infringement ASAP, then can TiVo come back later and accuse E* of the supposed continued infringement?

Can TiVo even come back later to insist that E* must disable the DVRs? Because as you can see, if TiVo provides reasonable responses in a timely fashion, and E* makes reasonable effort to do what TiVo says, the judge will be able to accept the new design and approve it for implementation, there will be no issue of violation of the injunction anymore, disabling or not, am I correct?

So whose fault will it be if TiVo refuses to respond rather wait and wait?

It is true that Judge Folsom simply has no time until the later part of April, but is TiVo also too busy to look at the code? As E* pointed out, TiVo certainly has time and resources to provide its response to the new code, in time ready for Judge Folsom to evaluate at the later part of April. What the judge may do after that will be his call.


----------



## James Long

jacmyoung said:


> Can TiVo even come back later to insist that E* must disable the DVRs? Because as you can see, if TiVo provides reasonable responses in a timely fashion, and E* makes reasonable effort to do what TiVo says, the judge will be able to accept the new design and approve it for implementation, there will be no issue of violation of the injunction anymore, disabling or not, am I correct?


The injunction does not say "modify the DVRs so they no longer infringe". The injunction says "disable" and defines that as storage to a hard drive. DISH needs to figure out how to make the named infringing receivers function without storing to a hard drive.

Think about being caught speeding and having a judge revoke your driver's license. You don't get to keep driving as long as you drive at/under the speed limit. You don't get to drive at all.

Or how about being caught illegally providing out of market broadcast stations to unqualified customers? The judge imposes a penalty where such channels can never be delivered again to any customer (even if qualified). DISH doesn't get to deliver channels (even to legally qualified customers) because of the complete ban.

The only thing to change this will be (working backwards) a new law or judgment allowing the delivery of out of market broadcast channels, a judge reinstating your license and (in the TiVo case) the injunction being set aside.

DISH doesn't get to leave the named receivers running forever until the injunction is set aside. And that question isn't before the court.


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## scooper

James Long said:


> The injunction does not say "modify the DVRs so they no longer infringe". The injunction says "disable" and defines that as storage to a hard drive. DISH needs to figure out how to make the named infringing receivers function without storing to a hard drive.
> 
> Think about being caught speeding and having a judge revoke your driver's license. You don't get to keep driving as long as you drive at/under the speed limit. You don't get to drive at all.
> 
> Or how about being caught illegally providing out of market broadcast stations to unqualified customers? The judge imposes a penalty where such channels can never be delivered again to any customer (even if qualified). DISH doesn't get to deliver channels (even to legally qualified customers) because of the complete ban.
> 
> The only thing to change this will be (working backwards) a new law or judgment allowing the delivery of out of market broadcast channels, a judge reinstating your license and (in the TiVo case) the injunction being set aside.
> 
> DISH doesn't get to leave the named receivers running forever until the injunction is set aside. And that question isn't before the court.


You obviously have not spent any time on that side of the law - the individuals that have their licenses revoked generally don't care and just drive anyway - even without a license and insurance etc.....


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## Lord Vader

That's driving, where they're less likely to get caught as long as they don't attract any attention (speeding, accidents, blowing red lights, etc.). DISH cannot ignore a federal court order and pretend no one will notice.


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## jacmyoung

James Long said:


> The injunction does not say "modify the DVRs so they no longer infringe". The injunction says "disable" and defines that as storage to a hard drive. DISH needs to figure out how to make the named infringing receivers function without storing to a hard drive....


Not when the injunction is stayed. At this time, until the the stay is lifted, if it happens, which will be at least a few months from now...

But at this time, the question is how TiVo may help the court to ensure that E* no longer infringes. If TiVo clearly is relunctant and delays such effort, TiVo cannot come back and complain.

The problem is, if TiVo takes reasonable effort to help the court in its pre-approval process, TiVo runs the risk of having it all over for itself.

What I said from the very beginning, the issue, and the only issue, is the issue of infringement. Everything else is just formality, no matter how frightening they may appear


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## James Long

scooper said:


> You obviously have not spent any time on that side of the law - the individuals that have their licenses revoked generally don't care and just drive anyway - even without a license and insurance etc.....


That is exactly the level of compliance DISH has been following (except for the current stay of the injunction). They have no LEGAL right to have left the named receivers operating. Fortunately the armed marshals with guns have not forced them off the road the way a person with a revoked would be forced off the road when found.



jacmyoung said:


> Not when the injunction is stayed. At this time, until the the stay is lifted, if it happens, which will be at least a few months from now...


There have been long periods of time when the injunction was not stayed. DISH remained in violation during these periods.


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## jacmyoung

James Long said:


> ...They have no LEGAL right to have left the named receivers operating...


Whether that statment is true or not is not final yet, else we would need no panel rehearing and/or rehearing en banc processes.



> There have been long periods of time when the injunction was not stayed. DISH remained in violation during these periods.


Even if true, then pay that $300M and be done with it. The money is already reserved for it.


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## Lake Lover

tivonomo said:


> ...Rogers has only sold shares in the past to pay taxes on vested restricted shares of stock. Someone needs to study the SEC reports a bit more carefully.
> 
> Also another big correction. Rogers currently holds 627,825 shares *and *2.78 million options. So the 300,000 shares he sold were closer to 10% of his total position not "a third of his shares" as Lake Lover claimed.


I have never seen an explanation from Rogers or TiVo as to why he sold shares in July for several years. It may have been for tax payments, or planting tulips in his back yard. Oops, my mistake - too late for tulips. I will stick with my gut feeling that he and the several other insiders sold because a bird in the hand is worth two in the bush.


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## Curtis52

Lake Lover said:


> I have never seen an explanation from Rogers or TiVo as to why he sold shares in July for several years.


Possibly vesting. Rogers' CEO appontment anniversary date is July 1.


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## jacmyoung

Lake Lover said:


> ...I will stick with my gut feeling that he and the several other insiders sold because a bird in the hand is worth two in the bush.


If you are correct, then from now on they can only watch two birds in the bush because of the buyout offer from Charlie? What will it take for them to be able to have a bird in the hand again? Are you even in any way implying that Charlie's move was to force them to only watch the birds in the bush?


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## tivonomo

Lake Lover said:


> I have never seen an explanation from Rogers or TiVo as to why he sold shares in July for several years.


Can't you read the filing yourself??? I mean seriously, I told you the truth and your reply is to contradict me?

You will find this if you care about getting your facts straight:

"These shares have been surrendered to the Company to pay taxes applicable to the vesting of restricted stock. "


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## jacmyoung

tivonomo said:


> ..."These shares have been surrendered to the Company to pay taxes applicable to the vesting of restricted stock. "...


So Rogers recently just sold 300K of his shares and surrendered the $4.8M to TiVo to pay taxes?

Let's assume Charlie made a buyout offer, do you agree with Lake Lover that while Charlie's buyout offer is on the table, the "TiVo insiders" may not "surrender" their shares?

Do you agree if there is such an offer, it is likely a heavily discounted offer? If so how to respond to such offer?

Accept Charlie's offer? Which means the TiVo investors will lose, but the TiVo execs will be covered.

Reject his offer? Why hasn't TiVo done so already? Certainly the TiVo insiders would not like the idea that they cannot sell their shares while the offer is on the table? How are they going to pay their taxes?

I don't know, just asking. It is certainly very educational.


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## tivonomo

jacmyoung said:


> So Rogers recently just sold 300K of his shares and surrendered the $4.8M to TiVo to pay taxes?


You know very well if you followed the conversation that we are talking about the July sales each year.



jacmyoung said:


> Do you agree if there is such an offer, it is likely a heavily discounted offer? If so how to respond to such offer?


This is a topic for an investment/stock related message board. I don't want to get banned for being in violation of the board rules.


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## jacmyoung

tivonomo said:


> You know very well if you followed the conversation that we are talking about the July sales each year.


So in this case you do not necessarily disagree with Lake Lover that this recent Rogers' sell was him trying to have the bird in his hand?



> This is a topic for an investment/stock related message board. I don't want to get banned for being in violation of the board rules.


We have been talking about stocks here often, no one has been banned for doing so. BTW, I did not start the rumor of the buyout offer, nor did I make the birdie argument, I am only asking questions, maybe Lake Lover was wrong, so I asked you the question, I thought you seemed someone who really knew what you were talking about.


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## tivonomo

jacmyoung said:


> So in this case you do not necessarily disagree with Lake Lover that this recent Rogers' sell was him trying to have the bird in his hand?


I believe talking about "birds in hand" is also against the board rules.



> We have been talking about stocks here often, no one has been banned for doing so.


From what I have heard on other boards, several users have been banned for talking about stocks here and I have seen at least one mod warn people here to not discuss stock related materials.

I am here to learn from others and discuss the consequences of the Appeal ruling. I really don't want to talk here about investments or speculate about why insiders trade stock.


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## jacmyoung

tivonomo said:


> I believe talking about "birds in hand" is also against the board rules.


The birdie argument was raised by Lake Lover, so far he is in no trouble, I don't think it is your job to decide if his posts are against the rule or not.



> From what I have heard on other boards, several users have been banned for talking about stocks here and I have seen at least one mod warn people here to not discuss stock related materials.


You have been talking stocks and stocks only in the last several posts of yours, so far you are in no danger, I don't think your fear is warranted.



> I am here to learn from others and discuss the consequences of the Appeal ruling. I really don't want to talk here about investments or speculate about why insiders trade stock.


The question I asked you was, what do you think the terms of the alleged Charlie's offer might be? Do you agree that it was likely a heavily discounted offer? If so why hasn't TiVo rejected it?

This question is a settlement question related more so to the lawsuit rather to the stocks. Now can you be brave enough to answer it?


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## jacmyoung

So now we know from TiVo that the new DirecTiVo DVR will not be available before the new DirecTV HDDVR becomes available. We had known that among the DBSForum members for some time, but it is still good to see TiVo saying it. I have always speculated that DirecTV was in no hurry to help TiVo, now oddly enough TiVo seems to agree with me

Additionally, Judge Folsom just granted MSFT's motion to intervene in the TiVo v. ATT case, more notably is the fact the judge dismissed each and every one of TiVo's arguments in its response to MSFT's motion. The judge even dismissed TiVo's argument that MSFT might try to move the case elsewhere.

Not that I think Judge Folsom will allow MSFT to move the case, but still the fact he dismissed TiVo's such argument is worth noting.


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## Herdfan

jacmyoung said:


> So now we know from TiVo that the new DirecTiVo DVR will not be available before the new DirecTV HDDVR becomes available.


Duh!

The new DirecTV HD DVR is available NOW! Its called the HR24 and with its non-DVR sibling, the H24, it is rolling out in 4 test markets with full MRV. Full release is scheduled for sometime in mid-May.

I would bet money the HMC30 will be out before the new DirecTiVo.

As for the stock talk, what I have seen is more of a mention in casual passing and not any attempt to "pump and dump".


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## jacmyoung

Herdfan said:


> ...I would bet money the HMC30 will be out before the new DirecTiVo...


Too late, TiVo already said so earlier today In fact it said it is possible they may not be able to deploy the new DirecTiVo.

Nice try though.



> As for the stock talk, what I have seen is more of a mention in casual passing and not any attempt to "pump and dump".


Of course, but if you notice it is usually those TiVo supporters who are more than happy to talk stocks here, but as soon as they are faced with a tough question, all the sudden they become frightened little kittens, scared about any stock talk, even when the issue was not stock related


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## dgordo

jacmyoung said:


> ...but as soon as they are faced with a tough question...


which question is that?


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## Lake Lover

Tsk, tsk. My sole intention in mentioning the fact that Tom Rogers had sold a few thousand shares of stock in July of 2006, 2007, 2008, and 2009, prior to his larger sales this yeear, of 72,000 before the March 4, 2010 court decision and 300,000 after it, was to provide background that he had indeed sold before, so we might expect him to sell again. This year he sold roughly ten times as many shares as he sold in any prior year. The fact that I read something into this may or may not be material -- that is just me. Its the way I think. Its the way that I concluded that any meaningful discussions even in an exploratory manner regarding settlement or buyouts or agreements of any kind between the parties could not have occurred prior to March 11. And, that is directly related to the discussions on this board swirling around settlements and monthly subscription fees and buyouts. There could not, IMO, have been any such discussions then open or on the table or even verbally broached as of March 11th. Thats all.

I don't want to exacerbate the condition of anyone who may be having a bad day. My thoughts were meant to be colloquial. I didn't think it required calculating to the tenth of a percentage point. TIVONOMO mentioned that the sales constituted around 10% of Rogers total _holdings_ rather than the roughly 30% of _shares_ which I mentioned, because, he said Rogers holds options for 2.78 million shares. My comment specifically mentioned shares, not options, because if you go that route you get into fully vested and exercisable options and unexercisable options (which may total over 4 million) and if we get going on taxes we gotta bring in the value of restricted stock awards and other compensation, and, not being a cpa, I would get a headache.

I apologize for having mentioned birds and tulips. I did not know that they were banned on this board. It won't happen again!

I did not mean to exacerbate anybody's bad week.


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## jacmyoung

Lake Lover said:


> ...I did not mean to exacerbate anybody's bad week.


What bad week? The fun seems to have just started.


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## jacmyoung

dgordo said:


> which question is that?


Can I tell you tomorrow?


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## tivonomo

Lake Lover said:


> TIVONOMO mentioned that the sales constituted around 10% of Rogers total _holdings_ rather than the roughly 30% of _shares_ which I mentioned, because, he said Rogers holds options for 2.78 million shares.


Your CPA comment aside, I think you have to consider the large options amount. 10% is a fairer representation of the reduction of Rogers' skin in the game than the third that you claimed...

Also, your interpretation of surrendering shares for tax purposes as Rogers' selling shares is a completely new concept to me. The alternative would be for Rogers' taking money out of his own pocket to cover the tax burden of vesting.

Regardless, this discussion couldn't be more pointless. It is all speculating if TiVo insiders are violating insider trader laws by knowing a settlement is not coming. There is no point going down that road.


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## James Long

I believe we've talked through the stock aspect enough ... Stocks are not the focus of our site, neither is TiVo. The focus of our site and this forum in particular is DISH Network. The focus of this thread is the continuing saga of the lawsuit.

:backtotop


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## jacmyoung

On 3/31 a new attorney appeared on behalf of E* at the appeals court, reading her bio it seemed Charlie is prepared to go all the way:

http://www.mofo.com/deanne-maynard/


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## jacmyoung

Also I mentioned a few weeks ago in the i4i v. MSFT case the panel granted a rehearing, then circulated for an en banc rehearing vote, yesterday the en banc rehearing was denied, so a total of over three months had passed until the en banc issue was resolved, while the panel rehearing will continue which will likely be another few months.


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## Curtis0620

Too bad the Stay is lifted on 4/30.


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## jacmyoung

Curtis0620 said:


> Too bad the Stay is lifted on 4/30.


Grammar error?

The appeals court stay will not be lifted until the rehearing issues are resolved and if the ruling is affirmed. As evident from prior cases that will take a few months.

Meanwhile Judge Folsom's own stay is an indication that he no longer viewed his injunction a sure thing. Otherwise there was no reason for him to stay his own injunction, as TiVo correctly pointed out, his injunciton had already been stayed by the appeals court while the en banc process would take its own course. E* wanted Judge Folsom to stay his own injunction, TiVo opposed, Judge Folsom granted E*'s wish. That is all you need to read into it.

Yes he may lift his own stay on 4/30, but the appeals court stay will still be in effect. But Judge Folsom can also extend his stay, or even vacate his own injunction, or anything in between, once he gets time to complete the pre-approval review, maybe before 4/30, or maybe after.


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## Lord Vader

jacmyoung said:


> Meanwhile Judge Folsom's own stay is an indication that he no longer viewed his injunction a sure thing.


That is a totally incorrect presumption on your part. Judges often don't lift their own stays not because they believe it's not a sure thing, but because there are higher court activities going on.


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## jacmyoung

Lord Vader said:


> That is a totally incorrect presumption on your part. Judges often don't lift their own stays not because they believe it's not a sure thing, but because there are higher court activities going on.


Do district judges often fervently refuse to stay their own injunctions, but after the appeals court stays their injunctions, later affirms their injunctions, suddenly turn 180 degrees and decide to stay their own injunctions?

Even if we assume you are correct, at a minimum you seem to agree that as long as the injunction is stayed by the appeals court, Judge Folsom is not likely to lift his stay?

So the question is, how likely the appeals court may lift its stay and if they do, when? This much we also know, the appeals panel never even metioned the lift of the stay in its split decision, afterwards TiVo motioned the appeals court to lift its stay immediately, without even a comment, the appeals court denied such motion. So what do you think? Is the appeals court likely to lift its own stay before the rehearing process is complete?

People talk about how TiVo may not even let E* license its technology, and E* will be doomed. Let's look at the facts for a moment.

TiVo's technology is in serious question with the PTO's rejection of the software claims, which were the only claims E* was found to infringe.

It has been clear E* has so far refused to license TiVo's patent, not TiVo refusing to let E* license its patent. The stances seem true even now because the only sign of an offer on the table is the rumored E*'s offer to take control of TiVo, not to license TiVo's patent.

TiVo has yet to respond to such E*'s buyout offer, if the rumor is true. What is TiVo waiting for? If we assume those TiVo folks are correct, that TiVo has shut the door on E* for any deals, then one would agree that the two would go all the way?

The question TiVo needs to ask is, what if Judge Folsom sees merits in E*'s new design and approves it? Wouldn't it be the end of the whole thing, for all intent and purpose? Could this be the reason why TiVo is still letting this buyout offer sit on the table, not rejecting it yet? TiVo sure isn't holding its breath that Charlie may make an offer to license its patent, specifically the software clamis, which are currently rejected by the PTO, is it?

What do you think?


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## dgordo

There is almost no chance that a buyout offer has been presented to the Tivo board. There are insider sales that have occurred and its clear that the board is not in revlon mode.


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## jacmyoung

dgordo said:


> There is almost no chance that a buyout offer has been presented to the Tivo board. There are insider sales that have occurred and its clear that the board is not in revlon mode.


If the insider sales happened *after* the buyout offer, then I agree the buyout rumor was likely not true. The latest insider sales we learned were around 3/11, the buyout rumor came out a week after.

If the insider sales are still on-going now, then Barron, or whoever brew that rumor, was blowing smoke, or the rumor could be true, but TiVo might have rejected the offer? Do you know more than we do?


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## spear61

A year or so ago, Charlie was asked about what would happen after this lawsuit was settled ( in one of his earnings conference calls). He said then, that no matter what the outcome, Dish and TIVO would be doing business together when this thing is ended.


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## jacmyoung

spear61 said:


> A year or so ago, Charlie was asked about what would happen after this lawsuit was settled ( in one of his earnings conference calls). He said then, that no matter what the outcome, Dish and TIVO would be doing business together when this thing is ended.


That means little, E* paying TiVo a license fee is doing business with TiVo, E* cross-licensing with TiVo (paying no fees) is doing business with TiVo, E* buying TiVo is also doing business with TiVo.

I wouldn't so easily dismiss the buyout offer rumor unless there is evidence that TiVo insider sales are still on-going, based on Lake Lover's theory that is.


----------



## dgordo

jacmyoung said:


> If the insider sales happened *after* the buyout offer, then I agree the buyout rumor was likely not true. The latest insider sales we learned were around 3/11, the buyout rumor came out a week after.
> 
> If the insider sales are still on-going now, then Barron, or whoever brew that rumor, was blowing smoke, or the rumor could be true, but TiVo might have rejected the offer? Do you know more than we do?


There are insider sales after 3/11, and even if there weren't, the board is clearly not in revlon mode.


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## jacmyoung

dgordo said:


> There are insider sales after 3/11, and even if there weren't, the board is clearly not in revlon mode.


No one ever said TiVo is in the revlon mode. Clearly if Charlie did offer to buy, as I speculated his offer would likely be a heavily discounted offer simply because we know Charlie is cheap

If TiVo has no interest in such offer, then all the reason to fight on, because we also have no indication there is any licensing talk either, but never say never.

I wouldn't mind if they work together, but I'd prefer they fight on so this thread can live on


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## dgordo

My point is that if there were a take over offer presented to the board, especially a discounted one, the board has to go into revlon mode.


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## scooper

Ok - so what's "Revlon mode" ?


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## BNUMM

scooper said:


> Ok - so what's "Revlon mode" ?


Revlon mode means that the board of directors has to try to get the best deal for the shareholders. See wikipedia.


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## jacmyoung

dgordo said:


> My point is that if there were a take over offer presented to the board, especially a discounted one, the board has to go into revlon mode.


Only if the board intended to sell at this time, they don't have to accept the buyout offer, however we don't know if they had rejected such offer. The rumor had this buyout offer but nothing else. However a rumor is just that, a rumor. Not out of the norm with Charlie though, because a buyout offer, if only it may trigger the revlon mode, will be a good thing because a change of control, no matter who buys TiVo, will likely mean possible end to the litigation if we consider the usual suspects, such as Google, or even MSFT. They all have working relations with DISH, or at least are not dependent on lawsuits because they have their own successful business models, unlike TiVo.


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## James Long

jacmyoung said:


> Only if the board intended to sell at this time, they don't have to accept the buyout offer, however we don't know if they had rejected such offer.


No. If there was an offer they MUST consider it based on the best interests of the shareholders. They don't get to secretly reject offers.


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## jacmyoung

James Long said:


> No. If there was an offer they MUST consider it based on the best interests of the shareholders. They don't get to secretly reject offers.


Exactly my point. If the buyout rumor is true, since there is no news of a rejection, nor a sign of a revlon mode, it means the offer is sitting on the table. The question I asked was, why? What is TiVo waiting for?

Either reject it, or accept it, in this case "accepting it" simply means TiVo is ready to sell due to Charlie's offer, and go into the revlon mode. But nothing is happening, so TiVo is letting the offer sit on the table. But why?

One thing to guess if the rumor is true or not, if we apply Lake Lover's theory, is to find out if there is no-going TiVo insider sales or not.


----------



## James Long

jacmyoung said:


> Exactly my point. If the buyout rumor is true, since there is no news of a rejection, nor a sign of a revlon mode, it means the offer is sitting on the table.


No. If there was an offer sitting on the table the board there would be news. Otherwise the board would be guilty of withholding the information from their shareholders.

The buyout rumor is false. It may be true in the future but the lack of any corroboration, action or announcement shows that there was no offer.

Now, can we get back to the court case?


----------



## jacmyoung

James Long said:


> No. If there was an offer sitting on the table the board there would be news. Otherwise the board would be guilty of withholding the information from their shareholders.
> 
> The buyout rumor is false. It may be true in the future but the lack of any corroboration, action or announcement shows that there was no offer.
> 
> Now, can we get back to the court case?


I should mention another thing, on 3/23/10, TiVo amended their 10k with a so called "fourth amendment" between "a Delaware Company" and the "Wells Fargo Shareonwers Rights" agent. It appears the section existed since 2001, the 3/23/10 amendment is the latest one. It talked about merger and acquiring, that was all I could discern anyway.

Who is this "Delaware Company"? Anyone knows? We know E* is a Delaware company.


----------



## James Long

jacmyoung said:


> I should mention another thing, on 3/23/10, TiVo amended their 10k with a so called "fourth amendment" between "a Delaware Company" and the "Wells Fargo Shareonwers Rights" agent. It appears the section existed since 2001, the 3/23/10 amendment is the latest one. It talked about merger and acquiring, that was all I could discern anyway.
> 
> Who is this "Delaware Company"? Anyone knows? We know E* is a Delaware company.


TiVo is a Delaware company, which is why DISH filed their suit against them in Delaware. (The suit was moved to Texas.)

Dish Network and Echostar are Nevada corporations.


----------



## jacmyoung

James Long said:


> TiVo is a Delaware company, which is why DISH filed their suit against them in Delaware. (The suit was moved to Texas.)
> 
> Dish Network and Echostar are Nevada corporations.


Could be where the rumor was from, when TiVo amended the section which sets the ground rules for a merger or buyout. BTW, a buyout or merger will be one of the several settlement options to resolve this lawsuit, so it is relevant.


----------



## James Long

jacmyoung said:


> Could be where the rumor was from, when TiVo amended the section which sets the ground rules for a merger or buyout. BTW, a buyout or merger will be one of the several settlement options to resolve this lawsuit, so it is relevant.


Rumors built on false information should not be spread. Your assertion that DISH was a Delaware corporation (and that we know that) is false information.

Note that the changes made March 23rd were to give Mr Rogers a bigger separation (two years base salary instead of 1.5 and health care for 24 months instead of 18) plus increase his bonus to 100% base salary from 80% and give him an annual bonus for staying with TiVo. A small increase from what he was given last year.

TiVo made a lot of changes last year to make it more expensive to buy the company (or at least more lucrative for those being bought out). And yet there was no buy out in 2009 - or 2008. TiVo is just covering their assets.

Nothing they are doing should be misconstrued as being any more than they have already done years ago. There is no news. And this isn't a TiVo forum so perhaps their rumors should be posted elsewhere and not here.


----------



## jacmyoung

James Long said:


> Rumors built on false information should not be spread. Your assertion that DISH was a Delaware corporation (and that we know that) is false information.
> 
> Note that the changes made March 23rd were to give Mr Rogers a bigger separation (two years base salary instead of 1.5 and health care for 24 months instead of 18) plus increase his bonus to 100% base salary from 80% and give him an annual bonus for staying with TiVo. A small increase from what he was given last year.
> 
> TiVo made a lot of changes last year to make it more expensive to buy the company (or at least more lucrative for those being bought out). And yet there was no buy out in 2009 - or 2008. TiVo is just covering their assets.
> 
> Nothing they are doing should be misconstrued as being any more than they have already done years ago. There is no news. And this isn't a TiVo forum so perhaps their rumors should be posted elsewhere and not here.


When I said E* being a DE co it was a mistake, people do make mistakes, thank you for correcting it.

Do you have any basis to declare that Charlie's buyout offer rumor was false? The rumor was spilled by one of those well placed Wall Street guys, not TiVo. A rumor that Charlie made a buyout offer to end this litigation is squarely on topic. If there is no longer TiVo insider sales, that may support the validity of this rumor, but the buyout offer is still Charlie's offer, related to Dishnetwork, not necessarily TiVo.


----------



## James Long

Stick with court filings ... TiVo rumors are not what this site is about.


----------



## tivonomo

James Long said:


> Stick with court filings ... TiVo rumors are not what this site is about.


Especially old rumors.

The en banc filing is due today. So far, no filing has been made (according to someone who has allegedly talked to a clerk). E* has until midnight.


----------



## jacmyoung

tivonomo said:


> Especially old rumors.
> 
> The en banc filing is due today. So far, no filing has been made (according to someone who has allegedly talked to a clerk). E* has until midnight.


I wouldn't call a two-week old rumor an old rumor.

As far as the en banc petition, or even a panel rehearing combined with the en banc, I don't think deadlines are set in stone, besides the CAFC Pacer site is known to post events a day or two behind quite often.

If Charlie is going en banc as he said he would, there is no way he will somehow accidentally miss it, we know this from the past. I did say he would take his sweet time to file such petition.


----------



## tivonomo

The en banc was filed and it does not differ significantly from the losing argument we've already seen. This line I found to be revealing... I don't think TiVo intends to license to Dish...

page 9 of the brief: "or capitulate to the patentee's demands for a license (_if one is even available_)"


----------



## jacmyoung

tivonomo said:


> The en banc was filed and it does not differ significantly from the losing argument we've already seen. This line I found to be revealing... I don't think TiVo intends to license to Dish...


It did get Judge Rader to be squarely in E*'s position. Given all the supposed harm E* is claiming, what do you think the chance of an en banc review? Of course E*'s strategy seems clear now, prepare for an emergency stay by the Supreme Court in the event the en banc is denied. The latest appearance of a top dog attorney specializing in the Supreme Court cases is a good indication.

Keep in mind the focus E* has now is to try to get Judge Folsom to decide on the pre-approval of the implementation of the new design. If they can convince him the new code no longer infringes, not only will Judge Folsom be compelled to approve the implementation of the new design, he might have to vacate his injunction, because without infringement, there cannot be injunction.



> page 9 of the brief: "or capitulate to the patentee's demands for a license (_if one is even available_)"


As far as this one, it is highly doubtful that TiVo has refused to license its crippled patent to E* or demanded some unreasonable rate, I have always speculated that E* has never come to the table as far as any license agreement is concerned, if so, of course they can claim that they don't even know whether a license deal is even possible. The beauty of such claim at this time is, TiVo does not get to respond to such claim in a petition for rehearing. It is all about getting the court to continue to stay the injunction while Judge Folsom gets to do his pre-approval review.


----------



## Ken984

The supreme court will not listen to this case this time just like the last time E* asked.


----------



## Curtis52

Ken984 said:


> The supreme court will not listen to this case this time just like the last time E* asked.


This is a contempt case. The Supreme Court has never before been asked to review this case.


----------



## jacmyoung

Curtis52 said:


> This is a contempt case. The Supreme Court has never before been asked to review this case.


I don't think he was saying the two cases are the same, only that the SC will not hear this one, just like it did not hear the last one.


----------



## jacmyoung

So the VIP922 DVR will be released tomorrow, perfect timing no? I have always speculated Charlie did not want to license TiVo's patent, based on what the little that was quoted by Tivonomo from E*'s petition, I have concluded there has never been any license agreement discussion between E* and TiVo. If the release of the VIP922 at this critical time is not an in your face to TiVo, I don't know what it is.

Folks can take a deep breath now and rule out any settlement news in the near future, except with that buyout rumor, which no one can confirm or deny.


----------



## FarmerBob

*TiVo's $200m damages award in EchoStar case affirmed, EchoStar to appeal (again)*


----------



## springtx

Do you think Dish will come out with a Tivo that will work with Dish?


----------



## dgordo

Whats the news that has Tivo up 5% today and DISH down 4%?


----------



## jacmyoung

dgordo said:


> Whats the news that has Tivo up 5% today and DISH down 4%?


There has never been any license agreement discussion between E* and TiVo?


----------



## Herdfan

FarmerBob said:


> *TiVo's $200m damages award in EchoStar case affirmed, EchoStar to appeal (again)*


Ummm.......

That is dated March 4 and is the news that started this thread 600 posts ago.


----------



## Lake Lover

dgordo said:


> Whats the news that has Tivo up 5% today and DISH down 4%?


The big news is that there is NO news other than EchoStar's last minute court filing to appeal the loss of their last appeal, to the full bank of circuit judges!! The feeling on Wall Street appears to be this is more of the same old same old, a delaying tactic, which is also going to fail, and if it fails there is no place else to hide and TiVo may wind up owning EchoStar.

(Tongue in cheek, of course.)

The other item of interest is the big reduction in Charlie's compensation package....

I won't say any more about stock, but it looks like TiVo is heading to the low $20's but who knows.


----------



## jacmyoung

Lake Lover said:


> ...The other item of interest is the big reduction in Charlie's compensation package...


You mean from $4B down to $3.8B? Any evidence of TiVo execs sales? If nothing is happening, it may support your theory that Charlie did offer to buy TiVo to settle the lawsuit, TiVo has not rejected it yet, the offer is still on the table?


----------



## Lake Lover

jacmyoung said:


> You mean from $4B down to $3.8B? Any evidence of TiVo execs sales? If nothing is happening, it may support your theory that Charlie did offer to buy TiVo to settle the lawsuit, TiVo has not rejected it yet, the offer is still on the table?


This WSJ article from April 1 touches upon Charlie's compensation from DISH.

http://online.wsj.com/article/SB100...870.html?mod=WSJ_business_LeadStoryCollection

I DO NOT theorize that Charlie offered to buy TiVo. I think no buyout offer has been made to date.


----------



## theoryman

Earlier in this thread, someone said that the 501 and 508 now had a $10 per unit charge. I've not seen that on my bill...

Currently, I have ... (on April bill)

612 -- $0 (Primary Receiver included in base charge)
508 -- $7 additional receiver charge
501 -- $7 additional receiver charge
301 -- $7 additional receiver charge
301 -- $7 additional receiver charge
301 -- $7 additional receiver charge

And I pay a $6 DVR fee. I did not pay the DVR fee until I added the 612.

I own all my equipment and have been with dish for 11 years.

--


----------



## jacmyoung

theoryman said:


> Earlier in this thread, someone said that the 501 and 508 now had a $10 per unit charge. I've not seen that on my bill...
> 
> Currently, I have ... (on April bill)
> 
> 612 -- $0 (Primary Receiver included in base charge)
> 508 -- $7 additional receiver charge
> 501 -- $7 additional receiver charge
> 301 -- $7 additional receiver charge
> 301 -- $7 additional receiver charge
> 301 -- $7 additional receiver charge
> 
> And I pay a $6 DVR fee. I did not pay the DVR fee until I added the 612.
> 
> I own all my equipment and have been with dish for 11 years.
> 
> --


You should switch then But then again based on your own supposed facts, you do not appear someone with any theory in mind


----------



## jacmyoung

Lake Lover said:


> This WSJ article from April 1 touches upon Charlie's compensation from DISH.
> 
> http://online.wsj.com/article/SB100...870.html?mod=WSJ_business_LeadStoryCollection
> 
> I DO NOT theorize that Charlie offered to buy TiVo. I think no buyout offer has been made to date.


But you also seem to offer no evidence that the TiVo execs can trade now.

So Charlie took the deepest pay cut during the time the company stocks doubled. Should be a good news for the investors and the customers, no?


----------



## Lake Lover

jacmyoung said:


> But you also seem to offer no evidence that the TiVo execs can trade now.
> 
> So Charlie took the deepest pay cut during the time the company stocks doubled. Should be a good news for the investors and the customers, no?


http://www.gurufocus.com/news.php?id=89399


----------



## jacmyoung

Lake Lover said:


> http://www.gurufocus.com/news.php?id=89399


Good! Barton just sold 500K of his shares, that should put to bed that big shot analyst's rumor that there is a buyout offer on the table. Not only there has never been any license agreement discussion, there has never been anything at all it seems.

Are you just as happy as I am that the fight will go on and this thread will live on?

Tivonomo, did Mr. Barton sell those shares to pay his taxes? I hope not, I hope he sold them for a big profit for himself. There are not many people on this planet that can manage to turn the company name into a common household verb. He deserves it, hopefully for himself, not for uncle sam.


----------



## riffjim4069

dgordo said:


> Whats the news that has Tivo up 5% today and DISH down 4%?


The news is that a certain analyst is now projecting DISH will be paying upwards of $4 per DVR per months to license Tivo's intellectual property - up from the $3 fee projected last month by Craig Moffett.


----------



## phrelin

Being an "analyst" myself (I can analyze as well as the next guy), I figure that Charlie in February added about $3-$5 to the monthly cost of DVRs for this. I don't think he'll be voluntarily giving all that away. But it's already there if other options disappear. If this drags out until fall, it won't even look like this has impacted his customers as he won't instantly raise rates.


----------



## jacmyoung

riffjim4069 said:


> The news is that a certain analyst is now projecting DISH will be paying upwards of $4 per DVR per months to license Tivo's intellectual property - up from the $3 fee projected last month by Craig Moffett.


Your news was too late, it turned out both TiVo and DISH were down yesterday. Did that certain analyst spill the buyout rumor too?


----------



## jacmyoung

phrelin said:


> ...I don't think he'll be voluntarily giving all that away...


Thank you for the clarification, for a while I thought your analysis was he would be more than happy to give all that away

I must say you are almost there, sounded like those big shot Wall Street analysts already


----------



## James Long

phrelin said:


> I figure that Charlie in February added about $3-$5 to the monthly cost of DVRs for this.


I figure that DISH added $3-$5 to the monthly cost of DVRs so they would not have to raise their base programming prices this year.

It is all about the bottom line. DISH charges what they can divided up across the channels and services they offer in a way that they continue to make a profit. If they actually charged the cost price with a level markup their pricing would be completely different. They are just setting prices that customers accept and (in general) will pay.


----------



## jacmyoung

James Long said:


> I figure that DISH added $3-$5 to the monthly cost of DVRs so they would not have to raise their base programming prices this year.
> 
> It is all about the bottom line. DISH charges what they can divided up across the channels and services they offer in a way that they continue to make a profit. If they actually charged the cost price with a level markup their pricing would be completely different. They are just setting prices that customers accept and (in general) will pay.


I think DISH is trying to differentiate itself from DirecTV. DirecTV has higher programming cost but lower DVR fees for those households that use several DVRs. Sports fans tend to have multiple DVRs, the target is clear. For those single-DVR households, likely non-sports fans, DISH has a clear advantage since the first DVR is free, and DISH's programming cost is lower.

Each has its own targeted demographics, it seems to me a very logical arrangement.

Just doing my part to help Phrelin's pursuit of his analyst career Once you have mastered your skill in separating speculations from the reality, you are there. I have failed miserably in that regard, but borrowing another member's avatar: "I am not entirely useless, I can be a bad example."


----------



## Michael P

> DISH has a clear advantage since the first DVR is free


The only "free" DVR I know of are the old SD models like the 508. I have one 622 and last time I checked, there was a fee. OTOH I used to have "DVR Advantage" which washed most of the cost of my locals (I previously did not sub to LIL's until DVR Advantage came out, for $1.01 increase I got my locals and the single DVR fee together). E* has since removed that program


----------



## phrelin

Michael P said:


> The only "free" DVR I know of are the old SD models like the 508. I have one 622 and last time I checked, there was a fee. OTOH I used to have "DVR Advantage" which washed most of the cost of my locals (I previously did not sub to LIL's until DVR Advantage came out, for $1.01 increase I got my locals and the single DVR fee together). E* has since removed that program


For most packages, you get the primary DVR "free," meaning that there is no line item for it. It should be the DVR that would cost the most if you are paying for more than one. In my case the 722 is "free" and the 612 is $10.


----------



## jacmyoung

phrelin said:


> &#8230; "free" ...





Big Shot Analyst said:


> &#8230; *FREE* &#8230;


You are clearly not analyst material, you are hopeless, just like me.


----------



## phrelin

jacmyoung said:


> You are clearly not analyst material, you are hopeless, just like me.


I was very careful to redefine the term:


> ..."free," meaning that there is no line item for it.


:sure:


----------



## James Long

phrelin said:


> For most packages, you get the primary DVR "free," meaning that there is no line item for it.


But, to be fair, there is a per account DVR fee line item (DVR included only in AEP).
The new policy of not charging a DVR fee per receiver has been replaced by charging more for a second receiver that is a DVR than one that isn't.


----------



## Jim5506

There is now a $6 DVR fee on AEP (any account with 1 DVR gets the fee even if it is a 508), and the receiver fees for DVR receivers are $3 higher than receiver fees for non-DVR receivers.

Dish's claim of no receiver fees is a fraud, it is unspoken and unmentioned but in plain sight.


----------



## James Long

It is hard to keep track of what has a fee and what doesn't ... But fees are where DISH makes their money - but the point was this year's increase in fees probably went to cover the annual increase in programming costs more than the services they are allegedly charging the fees for.

If DISH settles and agrees to a more long term fee there will probably be another increase.


----------



## jacmyoung

The appeals court did ask TiVo to respond to the E* petition for en banc by 4/21. In most en banc cases the appeals court denies them without seeking responses, so one can consider this a positive for E*.

But I am afraid all eyes might have easily been on the wrong ball here


----------



## Lake Lover

Hot off the news wire at 8:32 a.m.~~~~~


08:32 EDT TIVO, SATS, DISH	FRI April 9, 2010
theflyonthewall.com: TiVo and EchoStar could merge, says Citigroup
Citigroup said several factors point to a potential Tivo (TIVO) and EchoStar (SATS) merger. The analyst believes a Tivo legal victory in its long standing lawsuit with EchoStar will force EchoStar's hand to acquire Tivo instead of paying royalties. Additionally, the firm sees synergies in a merger and notes it would allow Tivo's assets to stay out of the hands of other pay players. Note that Citigroup downgraded EchoStar to Sell from Buy based on a potential share issuance and court ruling. :theflyonthewall.com

06:41 EDT DISH	
theflyonthewall.com: DISH Network upgraded to Buy from Neutral at UBS

06:35 EDT SATS	
theflyonthewall.com: EchoStar downgraded to Sell from Buy at Citigroup


----------



## Lake Lover

This blurb courtesy of Fly on the Wall would seem to indicate that TiVo is a roaring buy. Of course the next minute DISH and TIVO could inform us that they hate each others guts and there is no interest in walking hand in hand to the altar. My gut feeling is that TiVo would first want the world to see a declaratory judgement of victory to the point were it just about owns Echo. 

This just gets interestinger and interestinger. HeHeHe!


----------



## jacmyoung

Lake Lover said:


> ...to the point were it just about owns Echo...!


You mean TiVo will buy E*? What is the difference? If TiVo buys E*, E* does not have to pay TiVo It is not as if DISH's value will change, it will still have its 14M subs and climbing, who cares who owns it? The only difference is, if TiVo "owns" it then E* will not have to pay TiVo anymore

Do any of the TiVo fans really think the TiVo management is capable of running a SAT co like E*, keeping its subs up, amid the fierce competition from DirecTV and cablecos? What is TiVo management's track record? God forbid and for the sake of the humanity, TiVo does not buy E*

You guys should agree with me when I say the fight should go on, because so far this is the only track record TiVo has shown us, so you better pray the fight goes on and never stops

But let's suppose they will merge, we know the TiVo execs have already in more than one instance put in those "small poison pills" to keep their benefits before bailing out, after the change of control. Clearly TiVo's execs have no intention to run the company after the merger, so Charlie will still be in control of the company, whatever it is after the merger. If so, who own's who and what? What will be the difference anyway?


----------



## dgordo

jacmyoung said:


> In most en banc cases the appeals court denies them without seeking responses.....


Source?


----------



## Lake Lover

jacmyoung said:


> You mean TiVo will buy E*? ... God forbid and for the sake of the humanity, TiVo does not buy E*
> 
> You guys should agree with me when I say the fight should go on, because so far this is the only track record TiVo has shown us, so you better pray the fight goes on and never stops
> 
> But let's suppose they will merge, ... who own's who and what? What will be the difference anyway?


Don't take me too literally, I get kind of google eyed and frothy at the mouth when my stocks are in play. 
The stakes are too high for each side and I hate to see the small shareholders on the loosing side take a licking, whichever way this finally comes down. SATS finances are in terrible shape, and I think SATS maximum potential liability has been agreed to be only $5,000,000, any award above that comes out of DISH's pockets. 
So, retorically, TIVO market cap may wind up bigger that SATS. Something like during the Cold War, Nikita Khruschev pounding on a table and telling the U S "We will bury you!" But this time its Tom yelling at Charlie, "I will own you!"

I really want an arrangement where the little guy -- be it shareholders or subscribers, don't pay the price for the super ego of the dueling corporate executives.


----------



## Jhon69

Lake Lover said:


> Don't take me too literally, I get kind of google eyed and frothy at the mouth when my stocks are in play.
> The stakes are too high for each side and I hate to see the small shareholders on the loosing side take a licking, whichever way this finally comes down. SATS finances are in terrible shape, and I think SATS maximum potential liability has been agreed to be only $5,000,000, any award above that comes out of DISH's pockets.
> So, retorically, TIVO market cap may wind up bigger that SATS. Something like during the Cold War, Nikita Khruschev pounding on a table and telling the U S "We will bury you!" But this time its Tom yelling at Charlie, "I will own you!"
> 
> I really want an arrangement where the little guy -- be it shareholders or subscribers, don't pay the price for the super ego of the dueling corporate executives.


Man if you have to dream might as well dream big!.


----------



## jacmyoung

dgordo said:


> Source?


Just read the CAFC weekly reports.


----------



## jacmyoung

Lake Lover said:


> Don't take me too literally, I get kind of google eyed and frothy at the mouth when my stocks are in play.


First of, I remember you saying you got out of TiVo completely after the 3/4 win, when did you get back in and at how much?



> The stakes are too high for each side and I hate to see the small shareholders on the loosing side take a licking, whichever way this finally comes down. SATS finances are in terrible shape, and I think SATS maximum potential liability has been agreed to be only $5,000,000, any award above that comes out of DISH's pockets.
> So, retorically, TIVO market cap may wind up bigger that SATS. Something like during the Cold War, Nikita Khruschev pounding on a table and telling the U S "We will bury you!" But this time its Tom yelling at Charlie, "I will own you!"


You did not answer my question, suppose there is a merger, who do you think will have the control of the company? Charlie or Rogers? TiVo has prepared a bailout plan for Rogers, and all its execs. But let's suppose those plans are all formality, seriously who do you nominate to be in control of the merged company?



> I really want an arrangement where the little guy -- be it shareholders or subscribers, don't pay the price for the super ego of the dueling corporate executives.


Ok. Based on the track record of each candidate, let's say Rogers will be in control of the merged company, do we expect the new company to lose millions of subs while fighting ATT, MSFT and Verizon, hopefully before he loses out all of the 14m+1.5M total subs, he will manage to disable many of the DVRs used by ATT, MSFT and Verizon? Is this what you call your shareholders and subscribers' interests? Because we only have those track records to go by to anticipate what might be the course of the future, don't you think?

Let's face it, you have no interest in the interest of the subscribers, only your own share values. At least let's be honest.


----------



## Lake Lover

jacmyoung said:


> First of, I remember you saying you got out of TiVo completely after the 3/4 win, when did you get back in and at how much?
> 
> You did not answer my question, suppose there is a merger, who do you think will have the control of the company? Charlie or Rogers? TiVo has prepared a bailout plan for Rogers, and all its execs. But let's suppose those plans are all formality, seriously who do you nominate to be in control of the merged company?
> 
> Ok. Based on the track record of each candidate, let's say Rogers will be in control of the merged company, do we expect the new company to lose millions of subs while fighting ATT, MSFT and Verizon, hopefully before he loses out all of the 14m+1.5M total subs, he will manage to disable many of the DVRs used by ATT, MSFT and Verizon? Is this what you call your shareholders and subscribers' interests? Because we only have those track records to go by to anticipate what might be the course of the future, don't you think?
> 
> Let's face it, you have no interest in the interest of the subscribers, only your own share values. At least let's be honest.


[Stock talk removed.]

Who would run a merged entity? I can't se it being Rogers because Tivo is so much smaller than the combined Dish/EchoStar. But I think any merger should serve to placate ALL shareholders and most importantly all subscribers. Keep the customers happy! Keep the customers.


----------



## James Long

jacmyoung said:


> First of, I remember you saying you got out of TiVo completely after the 3/4 win, when did you get back in and at how much?


This is not a stock talk forum. If you're trying to get this thread closed until there is _REAL_ court news you're starting down that path.

Please folks, this thread is for the discussion of the TiVo lawsuit and the court actions surrounding it. DBSTalk is not a TiVo site nor stock forum.

If you have a problem with that please send a PM.


----------



## jacmyoung

Lake Lover said:


> [Stock talk removed.]
> 
> Who would run a merged entity? I can't se it being Rogers because Tivo is so much smaller than the combined Dish/EchoStar. But I think any merger should serve to placate ALL shareholders and most importantly all subscribers. Keep the customers happy! Keep the customers.


Can you see Charlie running the merged company? If we suppose there will be a merger? At least he has shown his ability to keep the customers, also to gain customers?

The interesting thing is, the rumor has changed from a $3 to $4/box license deal to a merger. That tells a lot


----------



## James Long

Merger is just a euphemism for one company buying another. It is used when the company being bought doesn't want to accept the idea that they were bought. It is also used where the companies are of near equal stature.

If there is a merger it will be one company buying the other. The leadership will come from the company making the purchase. I'd rank it as pretty slim that TiVo would ever be able to buy DISH.

Yes, the hope of TiVo since this all began was that they would get a licensing contract that would keep making money for TiVo for years to come. It is an extreme hope that the court would ever award TiVo enough to buy DISH. Actual damages and some punitive damages plus interest is the only thing that DISH has to worry about. If that total is calculated as a figure high enough to buy DISH then it is way too high. But if you're going to dream, dream big!

The opposite dream is that suddenly the court will decide that DISH receivers no longer infringe and no more royalties will be owed. The ultimate dream for DISH would be a ruling that DISH receivers never infringed ... but that is just as likely as the ultimate dream for TiVo of being awarded enough to buy DISH.

I don't believe that anyone in management at TiVo is dreaming of buying DISH ... I do believe Charlie dreams of having his receiver's found to have never infringed. Reality sets in and I expect both sides have reigned in their dreams to a reasonable level: For TiVo that would be getting bought out or a long term license agreement - for DISH that would be having the current version of their receivers be found non-infringing and be able to leave them active (despite the disable language).

Although DISH/SATS purchasing TiVo would end the dispute I still believe that Charlie would rather win in court. At least a purchase would let him get back to what he does best ... run a successful satellite company.


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## jacmyoung

James Long said:


> ...for DISH that would be having the current version of their receivers be found non-infringing and be able to leave them active (despite the disable language)...


Here is the thing, Charlie just needs this half-dream to end the whole thing, probably spell the end of TiVo.


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## James Long

jacmyoung said:


> Here is the thing, Charlie just needs this half-dream to end the whole thing, probably spell the end of TiVo.


It would be a happy ending as the royalties up to the point receivers ceased to infringe (with interest) would still be owed. TiVo might end, but they would walk away with a lot of money.

The biggest negative would be proof that one can DVR without TiVo ... which means TiVo going after others would be less of an option. SATS would immediately license their technology to anyone TiVo might go after. TiVo really needs a licensing deal to stay alive ... or the continued promise of more royalties and penalties paid by DISH. The payments made have already served to help keep TiVo alive.


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## Lake Lover

James Long said:


> This is not a stock talk forum. If you're trying to get this thread closed until there is _REAL_ court news you're starting down that path.
> 
> Please folks, this thread is for the discussion of the TiVo lawsuit and the court actions surrounding it. DBSTalk is not a TiVo site nor stock forum.
> 
> If you have a problem with that please send a PM.


I agree with you entirely. You advised against getting way off topic previously and I got carried away, so I apologize. It won't happen again.


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## Lake Lover

jacmyoung said:


> Can you see Charlie running the merged company? If we suppose there will be a merger? At least he has shown his ability to keep the customers, also to gain customers?
> 
> The interesting thing is, the rumor has changed from a $3 to $4/box license deal to a merger. That tells a lot


Though perceived as an impediment to negotiation, the poison pill can encourage to treat the parties with respect and keep negotiations on point. And the pills can be withdrawn just as fast as they ere created.

Charlie certainly has the smarts to run the combination. The problem lies in how a combination could be implemented. To sell out, TiVo would look for a premium above current market capitalization. IMO, rumour and speculation have inflated Tivo's perceived value to an unsustainable level, sans the artificial support of more speculation. Dish does not have the cash for a hostile takeover above current values. I doubt Dish would be able to borrow enough to fund a hostile takeover. So, a takeover would involve part cash, part stock, which would be at least partly taxable, and dilutive.

The best way would be to negotiate a friendly union in an all stock deal. Charlie and Tom should both come away with something to be proud of, and save face. They could smile nicely for the cameras and tell how they can work together in the best interests of the company, its employees, shareholders, and subscribers; tell how they have saved multi millions of dollars which is better spent to grow the companies than on legal fees; explain that Tom and Charlie will act as Co-CEOs (a thousand miles apart), and one will serve as Chairman for five years and then retire.

This could be one union which really could be worth more than the parts. 
I would like to see something like that announced, but the egos involved make it doubtful.

How could it be formulated to preserve employee jobs, enhance services, and strengthen the corporation?


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## James Long

Lake Lover said:


> The best way would be to negotiate a friendly union in an all stock deal. Charlie and Tom should both come away with something to be proud of, and save face. They could smile nicely for the cameras and tell how they can work together in the best interests of the company, its employees, shareholders, and subscribers; tell how they have saved multi millions of dollars which is better spent to grow the companies than on legal fees;


That is the kind of "merger" I would expect (if there is one) ... DISH buys TiVo but for PR purposes it is sold as a "merger".



> explain that Tom and Charlie will act as Co-CEOs (a thousand miles apart), and one will serve as Chairman for five years and then retire.


That will never happen. Tom will take his golden parachute and move on to the next CEO job. Charlie won't share control and as long as the shareholders are served they don't need Tom at the top to be happy.


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## Curtis52

Lake Lover said:


> This could be one union which really could be worth more than the parts.


I think the deals TiVo has with DirecTV, Comcast, and Cox would be instantly voided.


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## coldsteel

Curtis52 said:


> I think the deals TiVo has with DirecTV, Comcast, and Cox would be instantly voided.


Why?


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## Greg Bimson

There is an escape clause if there is a material change of ownership. If DISH or SATS owns TiVo, that is the material change, and everyone can get out of their contract scott-free.

It makes absolutely zero sense for DISH or SATS to buy TiVo.


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## scooper

If it would stop the litigation - it could well be worth it. It's something I thought Dish/ SATS should have done when the first notice of an impending lawsuit was filed...


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## James Long

Greg Bimson said:


> There is an escape clause if there is a material change of ownership. If DISH or SATS owns TiVo, that is the material change, and everyone can get out of their contract scott-free.


At worse it would force a renegotiation of the contract ... not allow people to use the patent without payment. It could be a mess renegotiating the shared technology deals but it isn't like DirecTV, Comcast and Cox can just walk away and keep using TiVo technology.


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## jacmyoung

James Long said:


> At worse it would force a renegotiation of the contract ... not allow people to use the patent without payment. It could be a mess renegotiating the shared technology deals but it isn't like DirecTV, Comcast and Cox can just walk away and keep using TiVo technology.


Not as if those contracts have much value anyway. Which leads to my point, Charlie will buy TiVo only at the price he sees worth the tag. Like Lake Lover said, TiVo's value is super inflated due to speculations, Charlie needs to bring it down a lot. His next steps are for such purpose, time will tell if he succeeds or not.

Just a piece of news, today TiVo submitted to the PTO to add several claims in order to narrow its software claims, to try to survive the rejection. TiVo clearly understands its software claims stand no chance, else it would not have voluntarily offered to narrow them.

Personally I don't see it happening because no changes are proposed for the claims 31 and 61 themselves, however simply by reading the added new claims, it seems to make the 8 named DVRs non-infringing because the added claims now define a DVR technology that specifically relates to MRV functions, or at least it seemed that way. Of course a technology specific to DVR MRV may still cover a DVR without MRV, which is why I think it is a trick. Nevertheless, it is possible the amendment may pave the way to let the 8 named DVRs of the hook (not that I think E* needs that but could be a gesture by TiVo), i.e. pave the way for a merger, while still maintaining the patent validity to go after newer DVRs by the other companies.


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## jacmyoung

This is my question for the experts.

Once TiVo seeks to amend/narrow its software claims, and/or the PTO accepts the modification in time, does it give E* the justification to at least seek to vacate the existing infringement verdict? I am not talking about the past infringement but the current infringement. Since the infringement was based on the old claim limitations, change of such limitations, especially aimed to narrow the claim scope, naturally renders the infringement finding invalid because it is based on the past broader claim scope.

If the answer is yes, that may very well point to an effort towards a merger. Not for certain but at least it points to that direction.

Of course if there has never been any buyout or merger talk between E* and TiVo, then TiVo's such effort at the PTO may be viewed as TiVo giving up its fight with Charlie, while trying to rescue its software claims in time to assert its software claims right against ATT/MSFT/Verizon.


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## scooper

If there is any common sense in the law - it should - but I am not a lawyer.


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## Curtis52

scooper said:


> If there is any common sense in the law - it should - but I am not a lawyer.


It should what? A clue would be nice.


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## audiomaster

I wonder if the government might block a merger if, as a result, the Tivo contract with Direct was to be cancelled/renegotiated resulting in hardship/ increased fees for its customers since there are more of them than Dish customers?


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## Curtis52

audiomaster said:


> I wonder if the government might block a merger if, as a result, the Tivo contract with Direct was to be cancelled/renegotiated resulting in hardship/ increased fees for its customers since there are more of them than Dish customers?


That sort of thing didn't phase the Rimm/Blackberry judge. It shouldn't anyway. If anything, the huge number of patsies should hasten the disablement, not slow it.


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## HobbyTalk

IMHO all Tom Rogers is looking to do is coat his own pockets. In his past dealings with NBCi and Primedia, they all pretty much ended in failure and just put gold lining in his pockets while the company, employees and shareholders suffered. His pushing through his own golden parachute should be a big clue that something is up.


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## jacmyoung

HobbyTalk said:


> IMHO all Tom Rogers is looking to do is coat his own pockets. In his past dealings with NBCi and Primedia, they all pretty much ended in failure and just put gold lining in his pockets while the company, employees and shareholders suffered. His pushing through his own golden parachute should be a big clue that something is up.


But he earned it. He founded those big media joints such as CNBC, why do you think all those big shot analysts have been lining up on TiVo's side? Many of those folks owed their careers to him.


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## jacmyoung

> 64. (New) The process of claim 31, wherein said transform object retrieves from said storage device a first set of data streams for a first program that are converted to first display signals that are provided to a first external device *[TV1]*, and simultaneously retrieves a second set of data streams for a second program that are converted to second display signals that are provided to a second external device *[TV2]*.
> 
> 65. (New) The process of claim 64, wherein said flow command events cause a rewind of said first program and a rewind of said second program.


The reason I quoted the two significant amended new claims, which further define or narrow the software claims such as claim 31, is that it appears the modifications specifically had the E* Broadcom DVRs, i.e. the 625s in mind.

Recall when Judge Folsom granted a stay of his own injunction, he cited the arguments from both sides, he mentioned that E*'s new design before him was related to the Broadcom DVRs, i.e. the 625s. Among the 8 named DVRs, only the 625 has two "external devices", i.e. "TV1" and "TV2", which I highlighted above. The TiVo amendment appears specifically aimed at the 625s.

If so, one can speculate that:

1) There is likely no settlement talk between E* and TiVo, TiVo is still trying to go after E*, only that TiVo realized without the amendment, the software claims faced a certain second rejection, more importantly I believe E* in its pre-approval request continued to cite the PTO's rejection as support, TiVo had to take this specific step in response to E*.

2) If the amendment is accepted by the PTO, TiVo gets to argue again that the 625s continue to infringe, although I think such argument will have to be made in the new lawsuit currently pending before Judge Folsom, not in a contempt proceeding. But nevertheless TiVo will try to do it in the contempt proceeding, just that I think E* stands a good chance to fight it off because the new claim constructions, such as the terms "first external device", "second external device" and "rewind", will have to be done in a new action, cannot be done in a contempt proceeding.

The above of course assumes the PTO will accept TiVo's amendment, and doing so in time for Judge Folsom's review. Of course the above scenario also rules out any merger or other settlement rumors. It is however only a speculation.


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## jsfisher

Jim5506 said:


> There is now a $6 DVR fee on AEP (any account with 1 DVR gets the fee even if it is a 508), and the receiver fees for DVR receivers are $3 higher than receiver fees for non-DVR receivers.


Right idea, but bad example. There is no DVR fee for the 508 (nor the 501, nor the Vip211k-upgraded, for that matter).


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## TulsaOK

Are you sure about that?


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## jsfisher

Kent Taylor said:


> Are you sure about that?


Yes, I am sure.


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## HobbyTalk

jacmyoung said:


> But he earned it. He founded those big media joints such as CNBC, why do you think all those big shot analysts have been lining up on TiVo's side? Many of those folks owed their careers to him.


Sure he did. Just how well did iNBC go. Or that integration of about.com with the Primedia properties. Even the about.com purchase for 600M and sold for 400M. The Brill deal that went nowhere? Where did Primedia's stock go when he was there? Let's not even bring up how well TiVo has expanded under Rogers. I would want him to lead my media company :lol:


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## phrelin

HobbyTalk said:


> Sure he did. Just how well did iNBC go. Or that integration of about.com with the Primedia properties. Even the about.com purchase for 600M and sold for 400M. The Brill deal that went nowhere? Where did Primedia's stock go when he was there? Let's not even bring up how well TiVo has expanded under Rogers. I would want him to lead my media company :lol:


I didn't respond to the discussion about Rogers before, despite the huge itch the discussion created in my brain. And I won't detail my reasons for saying this, but as a GE shareholder IMHO the man's a moron who apparently networks well among execs.


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## jacmyoung

Just did a little more research related to the new TiVo software claims amendment. I speculated that TiVo might be trying to claim an MRV technology in its amendment in order to either try to capture the 625s again, or in alternative try to capture the newer DVRs by ATT/MSFT/Verizon that use MRV, or even the E* Duo VIPs.

In reality such attempt should fail too. Unless TiVo's Time Warping patent initially had already disclosed an MRV technology (I do not recall it did), claiming an MRV technology now in the same patent is called "late claiming", because such MRV technology has already been in use more than one year prior to this new TiVo amendment. The claims should be rejected for late claiming.


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## scooper

Doesn't Tivo already have a patent for MRV in one of their ones they are pursuing the other parties ? 

That would make the addition of MRV to the '389 patent "prior art" at the least. The PTO SHOULD throw these "additions" to the '389 patent out to the trash where they belong.

If Tivo wants to pursue Echostar on MRV - then they need to
A - add them to the new Verizon et al suit, or
B - open a new suit.


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## Curtis52

scooper said:


> That would make the addition of MRV to the '389 patent "prior art" at the least. The PTO SHOULD throw these "additions" to the '389 patent out to the trash where they belong.


A single step of a claim doesn't determine whether the entire claim is prior art. The combination of all the steps have to be prior art for the claim to be invalid. It seems like there was a similar discussion with PID filtering.


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## riffjim4069

jacmyoung said:


> ...Which leads to my point, Charlie will buy TiVo only at the price he sees worth the tag. Like Lake Lover said, TiVo's value is super inflated due to speculations, Charlie needs to bring it down a lot. His next steps are for such purpose, time will tell if he succeeds or not.


I have an idea! Why you don't head into downtown Detroit with a wallet filled with hundred dollar bills, hand a loaded weapon to a local thug, and then negotiate a "fair price" for how much you're willing to pay for the privilege of not being pistol-whipped and murdered. As numerious Wall Street pundits have opined, "Dish is now negotiating with a gun to its head". To believe otherwise is foolish. Regardless, Dish will now pay a premium to license Tivo IP for each and every DVR in their inventory ~or~ purchase Tivo at a super-inflated price ~or~ risk having upwards of 8 million DVRs disabled. And no!...buying Tivo for billions more than they're worth is not part of Charlie's strategy nor will it be a victory for Dish. Unfortunately, Charlie took a big risk (gambled) and, barring a last-minue Hail Mary (highly unlikely), is about too lose - big time.

Anyway, report back and let us know how well you fare with that Detroit city thug. I have a strong feeling that you will not be in a position to bargain a "fair price". The way I see it---the way almost every investment analyst sees it---is that Charlie is carrying around a wallet filled with cash and has provided Tivo with both a weapon and ammunition. The Tivo vs. Echostar case should have been settled years ago at a fraction of what it will now cost Dish shareholders. Barring any last minute legal heroics (which we have yet to see from Dish's legal team) I don't feel there is anything of substance to discuss in this case until the appeallate courts their ruling on the en banc request.


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## James Long

riffjim4069 said:


> As numerious Wall Street pundits have opined, "Dish is now negotiating with a gun to its head".


They are premature. As long as there is still a court case pending the gun is not at DISH's head.


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## jacmyoung

Curtis52 said:


> A single step of a claim doesn't determine whether the entire claim is prior art. The combination of all the steps have to be prior art for the claim to be invalid. It seems like there was a similar discussion with PID filtering.


The "single step", i.e. a single claim such as claim 64 quoted above, if it claims an art that has been in the public prior to its claim, must be rejected for "later claiming". What that means is the TiVo amendment should be rejected by the PTO, which of course means TiVo cannot now seek to overcome the PTO's rejection of the software claims with this new amendment.

Whether TiVo has another newer patent that covers MRV or not (we don't know that) is irrelevant, because the only patent at issue at this time is the "Time Warping" patent which does not claim an MRV art. TiVo cannot now try to add it in.


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## jacmyoung

James Long said:


> They are premature. As long as there is still a court case pending the gun is not at DISH's head.


The "thugs" are now saying "merger" (i.e. let's work things out together), not "$3 to $4 a pop" anymore, riffjim4069 over-slept due to being exhausted from watching the episode of "the pistol whipping game", he woke up not knowing it was just a show, not even knowing the show was over


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## scooper

riffjim4069 said:


> I have an idea! Why you don't head into downtown Detroit with a wallet filled with hundred dollar bills, hand a loaded weapon to a local thug, and then negotiate a "fair price" for how much you're willing to pay for the privilege of not being pistol-whipped and murdered. As numerious Wall Street pundits have opined, "Dish is now negotiating with a gun to its head". To believe otherwise is foolish. Regardless, Dish will now pay a premium to license Tivo IP for each and every DVR in their inventory ~or~ purchase Tivo at a super-inflated price ~or~ risk having upwards of 8 million DVRs disabled. And no!...buying Tivo for billions more than they're worth is not part of Charlie's strategy nor will it be a victory for Dish. Unfortunately, Charlie took a big risk (gambled) and, barring a last-minue Hail Mary (highly unlikely), is about too lose - big time.


Who says they "HAVE to pay", even if they lose the hearing ?



riffjim4069 said:


> Anyway, report back and let us know how well you fare with that Detroit city thug. I have a strong feeling that you will not be in a position to bargain a "fair price". The way I see it---the way almost every investment analyst sees it---is that Charlie is carrying around a wallet filled with cash and has provided Tivo with both a weapon and ammunition. The Tivo vs. Echostar case should have been settled years ago at a fraction of what it will now cost Dish shareholders. Barring any last minute legal heroics (which we have yet to see from Dish's legal team) I don't feel there is anything of substance to discuss in this case until the appeallate courts their ruling on the en banc request.


And like many other newbies - bring up the stock issue without researching who ACTUALLY owns the controlling stock... hint - it isn't too far from Echostar / Dish Executive Suite ...


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## jacmyoung

scooper said:


> ...If Tivo wants to pursue Echostar on MRV - then they need to
> A - add them to the new Verizon et al suit, or
> B - open a new suit.


TiVo is suing Verizon et al for infringement of three patents, the Time Warping patent and two newer patents, which are "continuations" of the Time Warping patent. This may mean that TiVo must prove infringement of the Time Warping patent to have a meaningful success against ATT/MSFT/Verizon, even though one of the two newer patents may or may not be an MRV patent.

The problem is, the only useful claims in the Time Warping patent are the two software claims. The hardware claims are too narrow, even those 8 named E* old DVRs did not infringe on the hardware claims. But again the problem is the software claims are now under rejection by the PTO, cannot be used against ATT/MSFT/Verizon at this time.

This is in part why TiVo is trying to resurrect the software claims in a hurry. The other part is because TiVo realized the software claims did not stand much chance of being validated again by the PTO.


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## jacmyoung

Seriously no legal expert can answer this question?

TiVo amended its software claims to narrow the scope of the claims, asked the PTO to accept the amendment and reinstate the narrowed software claims ASAP. I doubt the PTO will agree, but what if the PTO does agree ASAP?

Does that not mean E* no longer infringes? Not just now but possibly never? Because E* has only been found to infringe on the software claims based on the broader claim scope.

If so, is the PTO compelled to accept TiVo's suggestion, if such suggestion will benefit E*? After all it was E* who requested this reexamination to invalidate the software claims, with the goal of avoiding infringement.


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## Herdfan

jacmyoung said:


> Just did a little more research related to the new TiVo software claims amendment. I speculated that TiVo might be trying to claim an MRV technology in its amendment in order to either try to capture the 625s again, or in alternative try to capture the newer DVRs by ATT/MSFT/Verizon that use MRV, or even the E* Duo VIPs.


Stop me if I am wrong, but is TiVo's MRV nothing more than copying a recording from one box to another? Where all the other major carriers stream the content.


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## jacmyoung

Herdfan said:


> Stop me if I am wrong, but is TiVo's MRV nothing more than copying a recording from one box to another? Where all the other major carriers stream the content.


I know this is going to drive riffjim4069 nuts but who cares?

This lawsuit really never had anything to do with how TiVo's DVRs worked, even if at some time in the past the TiVo DVRs might have been mentioned for reference. Because even if TiVo had never built a DVR, it would not have impacted the rulings, other than maybe the judge would have imposed a compulsory license instead of the injunction.

To determine infringement is to compare the "accused products" (in this case the 8 named E* DVRs) to the TiVo patent claims, not to other products, not even to the TiVo DVRs. When TiVo amended its software claims to narrow them down and disclose only a DVR "process" that must support two independent "external devices", such amendment if accepted by the PTO should render all the old E* DVRs non-infringing, except the 625s, because the 625s do support two external TV devices.

But again as I said, the 625s existed many years before TiVo made such new claims just a few days ago, not only the new claims should be rejected on this ground alone, but even if for some reason the PTO accepts them, they cannot be used to capture the 625s again. Well TiVo can try but TiVo will have to do so in a new action, not in this contempt proceeding, additionally E* can easily invalidate the new claims in the court in a summary judgment, without a full trial.

The question is then, why did TiVo do this, basically admitting that its software claims are invalid without the amendment? TiVo could have just let the PTO render its next decision, likely another rejection but likely not a final action. But even if the next rejection turns out to be a final action, TiVo will still be able to appeal, which can take years, while the TiVo software claims will continue to be deemed as valid as they were originally described, without any narrowing amendment.

As it stands now, if the PTO accepts TiVo's amendment in a hurry, E* is free. Why would TiVo do this? This is where I said it points to a possible merger discussion, part of the agreement between E* and TiVo.

If there is no such talk between E* and TiVo, then the only other possible scenario is TiVo had determined that it cannot win the next pre-approval round and/or the en banc review round, if so, it may have decided to cut the loss and try to get the PTO to quickly reinstate the software claims so it can go after ATT/MSFT/Verizon. Notice all of their new DVRs do MRV, which requires them to support at least two independent "external devices". Of course TiVo will run into the same problem with ATT/MSFT/Verizon because their DVRs had used at least two external devices long before TiVo tried to claim such art a few days ago, but at least TiVo can try.

If anything, all TiVo had to show for in the past was its ability to win court fights, so why not keep such fights alive as long as it could.

Personally I cannot see any other reasons why TiVo suddenly decided to narrow its software claims at this critical time. Correct me if I am wrong.


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## rocatman

jacmyoung said:


> I know this is going to drive riffjim4069 nuts but who cares?
> 
> This lawsuit really never had anything to do with how TiVo's DVRs worked, even if at some time in the past the TiVo DVRs might have been mentioned for reference. Because even if TiVo had never built a DVR, it would not have impacted the rulings, other than maybe the judge would have imposed a compulsory license instead of the injunction.
> 
> To determine infringement is to compare the "accused products" (in this case the 8 named E* DVRs) to the TiVo patent claims, not to other products, not even to the TiVo DVRs. When TiVo amended its software claims to narrow them down and disclose only a DVR "process" that must support two independent "external devices", such amendment if accepted by the PTO should render all the old E* DVRs non-infringing, except the 625s, because the 625s do support two external TV devices.
> 
> But again as I said, the 625s existed many years before TiVo made such new claims just a few days ago, not only the new claims should be rejected on this ground alone, but even if for some reason the PTO accepts them, they cannot be used to capture the 625s again. Well TiVo can try but TiVo will have to do so in a new action, not in this contempt proceeding, additionally E* can easily invalidate the new claims in the court in a summary judgment, without a full trial.
> 
> The question is then, why did TiVo do this, basically admitting that its software claims are invalid without the amendment? TiVo could have just let the PTO render its next decision, likely another rejection but likely not a final action. But even if the next rejection turns out to be a final action, TiVo will still be able to appeal, which can take years, while the TiVo software claims will continue to be deemed as valid as they were originally described, without any narrowing amendment.
> 
> As it stands now, if the PTO accepts TiVo's amendment in a hurry, E* is free. Why would TiVo do this? This is where I said it points to a possible merger discussion, part of the agreement between E* and TiVo.
> 
> If there is no such talk between E* and TiVo, then the only other possible scenario is TiVo had determined that it cannot win the next pre-approval round and/or the en banc review round, if so, it may have decided to cut the loss and try to get the PTO to quickly reinstate the software claims so it can go after ATT/MSFT/Verizon. Notice all of their new DVRs do MRV, which requires them to support at least two independent "external devices". Of course TiVo will run into the same problem with ATT/MSFT/Verizon because their DVRs had used at least two external devices long before TiVo tried to claim such art a few days ago, but at least TiVo can try.
> 
> If anything, all TiVo had to show for in the past was its ability to win court fights, so why not keep such fights alive as long as it could.
> 
> Personally I cannot see any other reasons why TiVo suddenly decided to narrow its software claims at this critical time. Correct me if I am wrong.


Do you know for sure this is not just an attempt by TIVO to delay the PTO from making a final decision? Do you know for sure how the courts handle patents that have been rejected by the PTO but are under appeal? Certainly if the PTO rejected a new patent claim these claims could not be honored by the courts for an infringement violation but in this case the patent has been accepted/approved by the PTO and now has been rejected under the new rules at least at the preliminary review level.


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## jacmyoung

rocatman said:


> Do you know for sure this is not just an attempt by TIVO to delay the PTO from making a final decision? Do you know for sure how the courts handle patents that have been rejected by the PTO but are under appeal? Certainly if the PTO rejected a new patent claim these claims could not be honored by the courts for an infringement violation but in this case the patent has been accepted/approved by the PTO and now has been rejected under the new rules at least at the preliminary review level.


Possible but unlikely because there is no need to "delay" the PTO decision, as I said, whatever the PTO decision can be appealed, which will take years, while the claims are presumed valid by the court. But if the PTO accepts TiVo's amendment ASAP, as TiVo requested it to be done ASAP, E* can immediately motion the court to vacate the infringement and or contempt rulings because the patent claims have changed and are now narrower, I presume the changes should be applied all the way back to the time when the patent was granted. A new trial will be needed if TiVo wants to again prove infringement based on the narrower claims.


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## tivonomo

I just read something from Judge Rader that is jaw dropping.

"Quinn: Do you approach writing the dissent differently?

Rader: Sure. As I say, I don't have to take as great care to reflect the Court's law. I am instead writing a passionate presentation of what the law ought to be, not what the law is. "

I don't think Echostar and Charlie Ergen can count on Rader's dissent to give them any hope for an en banc. Rader was just lobbying Congress to change law.


----------



## jacmyoung

tivonomo said:


> I just read something from Judge Rader that is jaw dropping.
> 
> "Quinn: Do you approach writing the dissent differently?
> 
> Rader: Sure. As I say, I don't have to take as great care to reflect the Court's law. I am instead writing a passionate presentation of what the law ought to be, not what the law is. "
> 
> I don't think Echostar and Charlie Ergen can count on Rader's dissent to give them any hope for an en banc. Rader was just lobbying Congress to change law.


If so, we should see TiVo's response to E*'s petition fairly quickly, after all there are no legal issues, only Judge Rader's passion involved. So what is the wait? Why give E* more time?

But more importantly, why volunteer to narrow its own software claims, if successful will set E* totally free? Does it even matter how the court will rule, if the PTO accepts TiVo's amendment? The lawsuit will be over if the PTO agrees with TiVo, which can happen any time.

What will happen to TiVo if this case ends without any ruling against E*? Are you not concerned Tivonomo? Have you asked TiVo why they did what they did?

It is fine to point your finger at the others most of the time, but once in a while one should also look at what your own company is doing too. If your bosses are all jumping the ship, what good do you do fighting the others on their behalf? It may be a good idea to prepare to run for your own cover. I am not saying it will happen, but it is good to have a backup plan, after all everyone else seems to have his/her own backup plan already in place.


----------



## James Long

Is that your final answer?


----------



## Kheldar

James Long said:


> Is that your final answer?


Is your name "Regis" now? Or maybe "Meredith Vieira"?


----------



## jacmyoung

James Long said:


> Is that your final answer?


I don't have an answer, only questions


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## tivonomo

jacmyoung said:


> I don't have an answer, only questions


Yeah, questions directed at people who don't want to answer them.


----------



## jacmyoung

tivonomo said:


> Yeah, questions directed at people who don't want to answer them.


Or maybe because if they answer them, they will have to concede to an undesirable position, therefore the silence?


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## James Long

:backtotop


----------



## tivonomo

jacmyoung said:


> Or maybe because if they answer them, they will have to concede to an undesirable position, therefore the silence?


Well, my original post was to squarely discredit the argument by E* that the dissent is meaningful. I don't really see your questions as questions. They are simply speculative statements. I don't really know how to respond other than to say that I speculate much differently.

After reading Rader's dissent and reading the interview I pulled the quote from, I think Rader was simply making a "soapbox" type statement. I don't think it gives any additional merit to E*'s shaky legal position.


----------



## jacmyoung

tivonomo said:


> Well, my original post was to squarely discredit the argument by E* that the dissent is meaningful. I don't really see your questions as questions. They are simply speculative statements. I don't really know how to respond other than to say that I speculate much differently.
> 
> After reading Rader's dissent and reading the interview I pulled the quote from, I think Rader was simply making a "soapbox" type statement. I don't think it gives any additional merit to E*'s shaky legal position.


I completely disagree with your above statement.

Can you completely disagree with my statement that if the PTO accepts TiVo's claim changes and make the narrowed claims the patent of record, E* can go free?


----------



## jacmyoung

Personally I will not be surprised if E* motions the court to suspend the current court proceeding(s) citing TiVo's request to the PTO to further limit its software claims scope.

We know courts generally grant the request to suspend infringment proceedings in their early stages when the patent claims are under rejection in PTO reexaminations. IMHO here similarly the near certainty that the software claims will be narrowed, if not rejected, should give pause to any court proceedings involving infringement issuses strictly related to the claims which are under amendment consideration.

As I said if the PTO should accept TiVo's amendment, the past and current infringement verdicts against E* should be voided. It would be a waste of time to proceed with the current court proceedings should that happen.


----------



## Greg Bimson

jacmyoung said:


> Can you completely disagree with my statement that if the PTO accepts TiVo's claim changes and make the narrowed claims the patent of record, E* can go free?


I know the question wasn't directed at me. However, I don't necessarily know whether or not Dish Network and Echostar "can go free"...


jacmyoung said:


> IMHO here similarly the near certainty that the software claims will be narrowed, if not rejected, should give pause to any court proceedings involving infringement issuses strictly related to the claims which are under amendment consideration.


And that is the problem. The patent is valid as-is until all appeals regarding a rejection or a modification are complete. Most stays are regarding a patent which has not been litigated has been rejected by the PTO. There is prosecution history for the Time Warp patent. Besides, this isn't all about infringement; at this stage the litigation is about contempt.


jacmyoung said:


> As I said if the PTO should accept TiVo's amendment, the past and current infringement verdicts against E* should be voided. It would be a waste of time to proceed with the current court proceedings should that happen.


I wouldn't think voided would be correct. I would think that the injunction itself may be vacated, but the fact remains that while the patent was valid DISH/SATS infringed upon it. The monetary damages would still stand.


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## tivonomo

jacmyoung said:


> Personally I will not be surprised if E* motions the court to suspend the current court proceeding(s) citing TiVo's request to the PTO to further limit its software claims scope.


You are ignoring the truth here on your entire discussion of the patent. TiVo never requested to limit the claims and if you read the letter to the USPTO you know that it was given as an acceptable compromise. Key word is acceptable. Given that TiVo's 389 patent is what they are building their future business around your interpretation must be wrong.

And honestly your interpretation of the modified patent claims is more tortured than a waterboarded terrorist.


----------



## jacmyoung

tivonomo said:


> You are ignoring the truth here on your entire discussion of the patent. TiVo never requested to limit the claims and if you read the letter to the USPTO you know that it was given as an acceptable compromise. Key word is acceptable. Given that TiVo's 389 patent is what they are building their future business around your interpretation must be wrong.
> 
> And honestly your interpretation of the modified patent claims is more tortured than a waterboarded terrorist.


The amended claims limit the art only to the DVRs supporting two independent external devices, if you cannot dispute that, merely dismissing my interpretation as invalid is not convincing.

Besides, any amendment of the claims naturally exclude infringement by equivalents (I will cite case law later), which is exactly what E* was found in the contempt proceeding, regardless the details, the changes cannot be sorted out in a contempt proceeding anymore.


----------



## tivonomo

jacmyoung said:


> The amended claims limit the art only to the DVRs supporting two independent external devices, if you cannot dispute that, merely dismissing my interpretation as invalid is not convincing.
> 
> Besides, any amendment of the claims naturally exclude infringement by equivalents (I will cite case law later), which is exactly what E* was found in the contempt proceeding, regardless the details, the changes cannot be sorted out in a contempt proceeding anymore.


Again, TiVo offered the changes as a compromise solution but still is arguing for the entire patent to be upheld.

Secondly, if you read closely there is nothing that limits to two independent external devices. You inserted that yourself. Thus, I call it a tortured reading.


----------



## jacmyoung

tivonomo said:


> Again, TiVo offered the changes as a compromise solution but still is arguing for the entire patent to be upheld.
> 
> Secondly, if you read closely there is nothing that limits to two independent external devices. You inserted that yourself. Thus, I call it a tortured reading.


I quoted TiVo's own words, did not "insert" them.


----------



## jacmyoung

Greg Bimson said:


> I know the question wasn't directed at me. However, I don't necessarily know whether or not Dish Network and Echostar "can go free"


The question is directed at any one who cares to answer it. I did not expect Tivonomo to answer it anyway.



> And that is the problem. The patent is valid as-is until all appeals regarding a rejection or a modification are complete. Most stays are regarding a patent which has not been litigated has been rejected by the PTO. There is prosecution history for the Time Warp patent. Besides, this isn't all about infringement; at this stage the litigation is about contempt.


The prosecution history of the patent, as it stands now, is that the patent owners proposed certain amendment to be made to the software claims. Any amendment to the patent claims automatically precludes finding of infringement by the equivalents. Again I will cite the case law when I have a chance some time later today.



> I wouldn't think voided would be correct. I would think that the injunction itself may be vacated, but the fact remains that while the patent was valid DISH/SATS infringed upon it. The monetary damages would still stand.


The other question I had was, if the amendment is granted, does the amendment apply from the date the patent was granted? I think so. If true then the infringement findings, past or current, naturally cannot stand because they were based on the old software claims, which had always been invalid without the amendment.

Here lies the difference between a valid claim and an invalid one. If no amendment is proposed and granted, the old claims are presumed valid until such time TiVo fails to overcome the rejection after all appeals.

But if the amendment is granted and the amended claims are reinstated, such action naturally invalidates the old software claims, i.e. the old claims were never valid without the amendment. Since there can not be infringement of an invalid claim, and the old claims have been invalid from the beginning, the infringement findings, past and current, must be reversed, i.e. E* had never infringed. For that reason, the worst would happen would be that E* pays TiVo the attorney fees and costs for its supposed violation of the court order, if the appeals court ultimately upholds the ruling, and the Supreme Court refuses to review it.

While I have argued that the TiVo's amendment clearly narrows the software claims, such detail is not even relevant with respect to the court proceedings. The case law says any likely claim amendment should preclude finding of infringement by the equivalents.

Again I am no lawyer, any experts are welcome to prove me wrong.


----------



## tivonomo

jacmyoung said:


> Just did a little more research related to the new TiVo software claims amendment. I speculated that TiVo might be trying to claim an MRV technology in its amendment in order to either try to capture the 625s again, or in alternative try to capture the newer DVRs by ATT/MSFT/Verizon that use MRV, or even the E* Duo VIPs.





jacmyoung said:


> The claims should be rejected for late claiming.


As long as you are "quoting TiVo's own words" how about quoting this gem from TiVo's letter to the USPTO that you conveniently leave out to support your argument:



TiVo said:


> "These changes do not enlarge the scope of the claims of the patent or introduce new matter and their entry is therefore respectfully requested."


Additionally, just because a claim refers to two external devices, doesn't limit the claim to only 2 devices. If there were 3+ that would simply be the same as implementing the invention 2 or more times.


----------



## jacmyoung

tivonomo said:


> As long as you are "quoting TiVo's own words" how about quoting this gem from TiVo's letter to the USPTO that you conveniently leave out to support your argument:
> 
> Additionally, just because a claim refers to two external devices, doesn't limit the claim to only 2 devices. If there were 3+ that would simply be the same as implementing the invention 2 or more times.


It requires that the "transform object" must support two independent external devices, or if you are correct, more than two, but it does not apply to the DVRs that only support one independent external device, so all the named E* DVRs, except the 625s, cannot meet the limitations.

Of course TiVo said the change did not "enlarge" the scope, i.e. it did not broaden the scope, but TiVo did not dare to say it "narrows" the scope.

Any amendment aimed to avoid invalidation necessarily narrows the scope, else there would be no need for the amendment, TiVo just did not want to clearly admit it.


----------



## jacmyoung

BTW, any amendment aimed to overcome prior art objections, by definition is a "narrowing amendment". Where there is "narrowing amendment" to the patent claims, it precludes finding of infringement by the equivalents.

That is of course not to say finding of literal infringement will be certain. Finding of literal infringement may still be possible, but due to the narrowing claim scope, such finding, if there is one, should be evaluated.

Again just my personal take on the issue, any lawyer can tell me if I am wrong.

Of course the question here is, will the above be applicable to this case, when it has gone so far in stages? Well there are two court proceedings in place, one is the en banc proceeding, in this instance I think the en banc needs to be granted first, before the above will be applied, in an en banc review, the full bench will be reviewing the infringement findings, and if at that time the amendment is granted, any finding of infringement by the equivalents must be tossed out by law.

The second court proceeding is the pre-approval review by Judge Folsom. In this instance since the new design is a new design, determination of infringement by the equivalents will have to be precluded if the amendment is granted. I do not recall any finding of literal infringement during the contempt proceeding, as such the new design should be approved for implementation.

The bottomline is, this TiVo amendment clearly offers E* a way out, not a matter of if but when. The question no one wants to answer is, why did TiVo do it at this time?


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## Curtis52

It looks like TiVo hasn't proposed any changes to claim 31. That was wise of them.


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## jacmyoung

Curtis52 said:


> It looks like TiVo hasn't proposed any changes to claim 31. That was wise of them.


Among several things, they proposed to limit the "transform object" to support two independent external devices, not one, because the prior art disclosed a DVR process that supports a single external device.

The amended dependent claims necessarily narrow the term of the "transform object" in claims 31 and 61.


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## jacmyoung

The link below seems to do the best job of explaining preclusion of infringement finding by the equivalents, *retroactively*, after *any* amendment of the claims:

http://www.law.duke.edu/journals/dltr/articles/2001dltr0011.html

I must note that after this decision, the Supreme Court overturned the "complete bar" rule, only allowed the rule to apply to the cases which the amendments actually narrow the related claims, not for other unrelated purposes, which made sense.

The interesting thing is, reading several articles on this issue, they never said whether the amendment must be granted or not. It seems as long as the patent owners submitted such narrowing amendments, the patent owners have given up certain rights as a result.


----------



## jacmyoung

It appears TiVo had filed its en banc response yesterday, can't wait for the en banc decision. I bet Charlie already had a few messengers camped at the Surpreme Court

Who had ever imagined so much would happen day after day? This is the ultimate court fight.


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## tivonomo

jacmyoung said:


> It appears TiVo had filed its en banc response yesterday, can't wait for the en banc decision. I bet Charlie already had a few messengers camped at the Surpreme Court
> 
> Who had ever imagined so much would happen day after day? This is the ultimate court fight.


That sounds about right. E* is fighting like a bunch of scared little kittens while TiVo is the ultimate Tiger of the court system as far as E* is concerned. Beating the deadline by 7 days was quite impressive. Of course the E* en banc request wasn't that strong, IMO.


----------



## tivonomo

jacmyoung said:


> The link below seems to do the best job of explaining preclusion of infringement finding by the equivalents, *retroactively*, after *any* amendment of the claims:
> 
> http://www.law.duke.edu/journals/dltr/articles/2001dltr0011.html
> 
> I must note that after this decision, the Supreme Court overturned the "complete bar" rule, only allowed the rule to apply to the cases which the amendments actually narrow the related claims, not for other unrelated purposes, which made sense.
> 
> The interesting thing is, reading several articles on this issue, they never said whether the amendment must be granted or not. It seems as long as the patent owners submitted such narrowing amendments, the patent owners have given up certain rights as a result.


Can you give a step-by-step analysis how the proposed amendment actually "narrows the claims"... TiVo themselves say it doesn't. I tend to believe their experts and your prior analysis makes some big leaps that don't make any sense at all to me...


----------



## jacmyoung

tivonomo said:


> That sounds about right. E* is fighting like a bunch of scared little kittens while TiVo is the ultimate Tiger of the court system as far as E* is concerned. Beating the deadline by 7 days was quite impressive. Of course the E* en banc request wasn't that strong, IMO.


While I completely understand what you are saying, personally I will not be so quick to jump into any conclusion, I never say never. Have you read TiVo's response yet?


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## jacmyoung

tivonomo said:


> Can you give a step-by-step analysis how the proposed amendment actually "narrows the claims"... TiVo themselves say it doesn't. I tend to believe their experts and your prior analysis doesn't make some big leaps that don't make any sense at all to me...


TiVo never said it does not narrow the claims, only that it does not broaden the claims.

Do you agree or disagree with the following analysis:

According to the preclusion rule, since TiVo has amended its software claims, the court may no longer find infringement by the equivalents with respect to the software claims. Taking an example from what you and I had discussed. To find ATT/Uverse's DVRs infringing on TiVo's software claims (assume the PTO will reinstate the claims upon amendment), TiVo must prove literal infringement.

Since the ATT/Uverse DVRs support 4 external devices, the amended TiVo software claims describe a DVR process that supports two external devices, literal infringement cannot stand, on that one claim element, and that one claim element alone. We have not even touched on any other claim elements yet.

However infringement by the equivalents might still be found if as you stated, two or more external devices are not so different than two external devices, except if the court is precluded from finding infringement by the equivalents&#8230;

Now you can at least see why any amendment to the claims can seriously undermine the patent owners' ability to go after any potential infringers. Can you now answer my question, why did TiVo do it at this critical time?


----------



## tivonomo

jacmyoung said:


> TiVo never said it does not narrow the claims, only that it does not broaden the claims.
> 
> Do you agree or disagree with the following analysis:
> 
> According to the preclusion rule, since TiVo has amended its software claims, the court may no longer find infringement by the equivalents with respect to the software claims. Taking an example from what you and I had discussed. To find ATT/Uverse's DVRs infringing on TiVo's software claims (assume the PTO will reinstate the claims upon amendment), TiVo must prove literal infringement.
> 
> Since the ATT/Uverse DVRs support 4 external devices, the amended TiVo software claims describe a DVR process that supports two external devices, literal infringement cannot stand, on that one claim element, and that one claim element alone. We have not even touched on any other claim elements yet.
> 
> However infringement by the equivalents might still be found if as you stated, two or more external devices are not so different than two external devices, except if the court is precluded from finding infringement by the equivalents&#8230;
> 
> Now you can at least see why any amendment to the claims can seriously undermine the patent owners' ability to go after any potential infringers. Can you now answer my question, why did TiVo do it at this critical time?


You are right about narrowing, I was thinking of our prior discussion where you claimed broadening and got confused.

I think you are clearly jumping the gun on the narrowing issue. I think it is completely a moot point. If these new claims were so bad for TiVo they would have waited until a second rejection by the USPTO to offer them as an ammendment if the appeal of that rejection fails. Given that this is a voluntary gesture, I wouldn't interpret this as narrowing. And as I stated before I believe that the process is not limited to 2 external devices. It is teaching a process that could logically be applied as many times as needed. I don't believe that this aspect is enough to preclude using equivalents. But I am not a lawyer. Just a real good guesser of what the courts will rule. 

I will bet you a cyber beer that this will not have any negative impact on the AT&T case.


----------



## jacmyoung

tivonomo said:


> You are right about narrowing, I was thinking of our prior discussion where you claimed broadening and got confused.
> 
> I think you are clearly jumping the gun on the narrowing issue. I think it is completely a moot point. If these new claims were so bad for TiVo they would have waited until a second rejection by the USPTO to offer them as an ammendment if the appeal of that rejection fails. Given that this is a voluntary gesture, I wouldn't interpret this as narrowing. And as I stated before I believe that the process is not limited to 2 external devices. It is teaching a process that could logically be applied as many times as needed. I don't believe that this aspect is enough to preclude using equivalents. But I am not a lawyer. Just a real good guesser of what the courts will rule.
> 
> I will bet you a cyber beer that this will not have any negative impact on the AT&T case.


By definition, an amendment to overcome prior art rejection is a "narrowing" amendment.


----------



## tivonomo

jacmyoung said:


> By definition, an amendment to overcome prior art rejection is a "narrowing" amendment.


The degree of narrowing may be quite insignificant though. I consider these amendments as clarifying and not damaging TiVo's ability to continue to collect form DISH.

When you jump into a discussion about "preclusion of infringement finding by the equivalents, retroactively" you have to consider how the change impacts any courts findings.

I would argue that it is obvious that the software claims that Dish was found in contempt of infringing have not been modified in any way that keeps the courts from applying this finding to equivalents.


----------



## scooper

It is those very claims that the PTO is about to reject, hence Tivo submitted the amendments.


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## tivonomo

scooper said:


> It is those very claims that the PTO is about to reject, hence Tivo submitted the amendments.


Yes E* did challenge the patent but the claims that TiVo submitted do not impact the Dish/TiVo court case negatively. For instance, the MRV claims jacmyoung posted don't impact the time warp method at all.

Additionally, they are modifying the hardware claims as well which IMO strengthens TiVo's position against Dish and others regarding future infringement.


----------



## jacmyoung

tivonomo said:


> The degree of narrowing may be quite insignificant though. I consider these amendments as clarifying and not damaging TiVo's ability to continue to collect form DISH.
> 
> When you jump into a discussion about "preclusion of infringement finding by the equivalents, retroactively" you have to consider how the change impacts any courts findings.
> 
> I would argue that it is obvious that the software claims that Dish was found in contempt of infringing have not been modified in any way that keeps the courts from applying this finding to equivalents.


This was all fine until the narrowing amendment surfaced. Once a narrowing amendment is on the record as part of the PTO prosecution history, the law says no, the court may no longer find infringement by the equivalents. Unless you disagree with my interpretation of the law, you must admit that by TiVo proposing such narrowing amendment (regardless the degree of narrowing), the court may no longer find E* infringing, because we know the current finding of infringement is based on the doctrine of equivalents, not on literal infringment.


----------



## Curtis52

tivonomo said:


> Yes E* did challenge the patent but the claims that TiVo submitted do not impact the Dish/TiVo court case negatively.


TiVo can add new claims all day long and there is no impact to the existing claims.


----------



## tivonomo

The TiVo Response to Dish's en banc request is on PACER. It is a very strong and well supported argument... I believe the odds of Dish getting an en banc granted are just about 0.


----------



## jacmyoung

Curtis52 said:


> TiVo can add new claims all day long and there is no impact to the existing claims.


If you are correct, then the existing claims should be rejected, because TiVo said so themselves TiVo said the purpose of the amendment is to overcome any more rejection of the existing claims. If such amendment does nothing to the existing claims, then yes the existing claims should be rejected.

Pick your poison.


----------



## tivonomo

jacmyoung said:


> If you are correct, then the existing claims should be rejected, because TiVo said so themselves TiVo said the purpose of the amendment is to overcome any more rejection of the existing claims. If such amendment does nothing to the existing claims, then yes the existing claims should be rejected.
> 
> Pick your poison.


I have to agree with Curtis. I don't see how MRV claims really *alter *basic time warp features. After re-reading everything, they are clearly a related additional application of the claims that is being added in time for the AT&T case.

Here is what TiVo "said so themselves"  (emphasis added)



TiVo to the USPTO said:


> *Entry of the new claims could form the basis for allowable subject matter *should the Examiner find claims 31 and/or 61 to be unpatentable over the applied references. In addition to the arguments presented in Patent Owner' previous response in support of the patentability of claims 31 and 61, *neither of these references teaches or suggests the specific features recited in the new claims* when considered in combination with the features recited in independent claims 31 and 61.


----------



## jacmyoung

tivonomo said:


> I have to agree with Curtis. I don't see how MRV claims really *alter *basic time warp features. After re-reading everything, they are clearly a related additional application of the claims that is being added in time for the AT&T case.
> 
> Here is what TiVo "said so themselves"  (emphasis added)


No, TiVo clearly said the amendment was to satisfy the PTO in the event the PTO was to reject the software claims again. All the arguments you quoted were to convince the PTO that the amendment is legally acceptable.

First TiVo said the amendment does not "enlarge" the claim scope, which is a must. If the amendment enlarges the claim scope, it cannot be accepted.

Secondly, TiVo argued the amendment does not introduce new art into the claims. TiVo cited a few lines in the original patent specification for support. In my view the support is very weak. In TiVo's Time Warp patent, they did not disclose a DVR process that supports two independent external devices.

But even if they did, the fact remains, by definition, an amendment with the purpose of overcoming prior art rejection (TiVo said so) is a narrowing amendment, don't ask me, ask the Surpreme Court.

Where there is a narrowing claim amendment aimed to overcome prior art rejection, the court is precluded from finding infringement under the doctrine of equivalents with respect to that claim.

It should not even matter if in reality TiVo's amendment actually did narrow the claims or not, as long as TiVo said the purpose of the amendment was to satisfy the PTO so not to reject the software claims, then the amendment will be treated as narrowing amendment aimed to overcome prior art rejection.


----------



## tivonomo

jacmyoung said:


> No, TiVo clearly said the amendment was to satisfy the PTO in the event the PTO was to reject the software claims again.


:nono2:

Please quote where TiVo clearly said this. Otherwise you are making stuff up...


----------



## jacmyoung

tivonomo said:


> :nono2:
> 
> Please quote where TiVo clearly said this. Otherwise you are making stuff up...


Before I accuse someone of something, I usually like to hear him first:



> Entry of the new claims [the amendment] could form the basis for allowable subject matter should the Examiner find Claims 31 and/or 61 to be unpatentable over the applied references [i.e. the two prior art]."


This is the *only* purpose of the TiVo's amendment, don't ask me, ask TiVo.


----------



## jacmyoung

tivonomo said:


> ...Additionally, they are modifying the hardware claims as well which IMO strengthens TiVo's position against Dish and others regarding future infringement.


I missed this part, do you have a link to that fact?

Please keep in mind that any modification to existing patented claims cannot enlarge the claims, nor can it introduce any new subject matters. Therefore you cannot possibly modify an existing claim in order to capture more infringement.

Amendments cannot be good for the patent owners, only be bad for them. Some may not have much negative impact, but most do. In any case amendments cannot be good for them.


----------



## jacmyoung

We have long before touched on this issue but since you came late, here it is, a good refresher anyway:

The usual way to “strengthen” a patent claim is to narrow it. The narrower the claim, the less likely it may be invalidated, hence the stronger it becomes.

On the other hand, the narrower it is, the less likely it may be infringed on. You don’t get to have the cake and eat it too.

Usually the patent owners want to have their claims as broad as possible so it is easier to capture any potential infringers. But if the PTO examiner does his/her job right, the claims will be rejected a few times based on prior art, and the patent owners are forced to narrow the claims, before the claims are granted.

Often times the PTO examiners don’t have the resources or expertise to do a thorough job, they let the claims pass. Later it is up to the accused infringers to try to again invalidate the claims, which leads to reexaminations. Similar to the initial PTO examination, the goal of the reexaminations is to invalidate the patented claims using prior art, or at least force the patent owners to narrow the claims further, in doing so avoiding infringement.

For the above reasons, any attempt to “strengthen” the claims in order to survive prior art rejection, cannot end up making the claims easier to be infringed on.


----------



## tivonomo

jacmyoung said:


> Before I accuse someone of something, I usually like to hear him first:


I guess you simply misunderstand the section you quoted because TiVo did not say what you believe they said.

What TiVo is saying is that if the claims 31/61 are invalidated the new claims should still be patentable. They are not a backup plan. TiVo wants them added regardless of the re-exam outcome of claims 31/61. That should make sense because MRV is an extention of the patent. Not a narrowing of it.

For your whole theory of the past few days to hold water, TiVo would have to propose an amendment for claims 31 and/or 61. They have not.

Understand?


----------



## tivonomo

jacmyoung said:


> We have long before touched on this issue but since you came late, here it is, a good refresher anyway:
> 
> The usual way to "strengthen" a patent claim is to narrow it. The narrower the claim, the less likely it may be invalidated, hence the stronger it becomes.


Show me what was narrowed. Claim 31 and claim 61 are not being amended. Claims 62-69 are being *added.*:grin:


----------



## scooper

tivonomo said:


> Show me what was narrowed. Claim 31 and claim 61 are not being amended. Claims 62-69 are being *added.*:grin:


THAT should be against the rules. If the patent was already "granted" and is being prosecuted - you can't go changing it unless it is to show that it's invalid.


----------



## jacmyoung

tivonomo said:


> I guess you simply misunderstand the section you quoted because TiVo did not say what you believe they said.
> 
> What TiVo is saying is that if the claims 31/61 are invalidated the new claims should still be patentable. They are not a backup plan. TiVo wants them added regardless of the re-exam outcome of claims 31/61. That should make sense because MRV is an extention of the patent. Not a narrowing of it.
> 
> For your whole theory of the past few days to hold water, TiVo would have to propose an amendment for claims 31 and/or 61. They have not.
> 
> Understand?


Before you try to say how others do not have a clue, first look at what you have said and how many times I have corrected you. Granted you know a lot about stocks, but here is another point on the claims:

The new claims proposed by TiVo are *dependent claims*, i.e. they depend on claims 31 and/or 61. The purpose of the dependent claims is to further narrow the independent claims associated to them, that is by definition, not even in question.

If the independent claims 31 and 61 are to be rejected, it goes the newly amended claims as well. As scooper said, a patent owner simply cannot expand the scope of the existing patented claims, or introduce new subject matters in an amendment.

Now I am not here trying to accuse you of anything, we all have our misunderstandings and things to learn.

Why do you think the rumor from the big shot analysts has changed from a $3-$4/mo license deal, to a "merger", now to "TiVo is a top takeover target"? Since you know stocks, what does the term "takeover target" usually mean to you? I usually associate this term with a company that cannot survive on its own But here I plead ignorance, I want to know what is your take on it.


----------



## Tower Guy

jacmyoung said:


> Please keep in mind that any modification to existing patented claims cannot enlarge the claims, nor can it introduce any new subject matters. Therefore you cannot possibly modify an existing claim in order to capture more infringement.


That's correct. However, what if TiVo's intention is to simply muddy the waters? As it stands, because of the workaround coupled with the PTO's actions, the legal grounds for continuing the injunction becomes murky. Sure E* has their new workaround software, but what if the modified claims more clearly address features of the new E* software that TiVo would like the judge to rule against? What if that software becomes harder to implement and takes longer to adjudicate because of the new claims? It certainly adds to the confusion for the courts.

I feel that we're in new territory with patent law and rights, but the judge's injunction can't be ignored. Once a patent is infringed, what is the process to determine if a workaround is valid? How that process protects both the patent owner and the company that's honestly trying to avoid infringement (assuming that E* is being honest!!), will be hard to decide. How those two get resolved will be very interesting.


----------



## tivonomo

jacmyoung said:


> Before you try to say how others do not have a clue , first look at what you have said and how many times I have corrected you.





jacmyoung said:


> The new claims proposed by TiVo are *dependent claims*, i.e. they depend on claims 31 and/or 61. The purpose of the dependent claims is to further narrow the independent claims associated to them, that is by definition, not even in question.


So your argument is that TiVo has narrowed its time warp claim to only apply to two external devices? You've made it abundantly clear that this is your view.I think you need to reexamine your logic if you honestly believe that.

Just look at the claims. They are clearly additional and within the scope of claims 61 and 71. Neither expanding (as you had initially claimed) nor narrowing.


----------



## jacmyoung

Tower Guy said:


> That's correct. However, what if TiVo's intention is to simply muddy the waters? As it stands, because of the workaround coupled with the PTO's actions, the legal grounds for continuing the injunction becomes murky. Sure E* has their new workaround software, but what if the modified claims more clearly address features of the new E* software that TiVo would like the judge to rule against? What if that software becomes harder to implement and takes longer to adjudicate because of the new claims? It certainly adds to the confusion for the courts.


Can't argue against that, except that it has always been that Charlie wanted to delay it, "muddy" it, now it is TiVo's turn, if so what do you think?



> I feel that we're in new territory with patent law and rights, but the judge's injunction can't be ignored. Once a patent is infringed, what is the process to determine if a workaround is valid? How that process protects both the patent owner and the company that's honestly trying to avoid infringement (assuming that E* is being honest!!), will be hard to decide. How those two get resolved will be very interesting.


I continue to believe in the end there is no new territory to speak of. Even if the violation of the order can stand, as long as there is no infringement, TiVo is in trouble, as I had explained before the most E* would pay TiVo would be the attorney fees and cost. I don't call that ground breaking.


----------



## Curtis52

> As it is impossible to gain an absolute and complete knowledge of every publication on earth, not to mention unpublished patent applications, there is always some degree of uncertainty. If the independent claim is determined to be invalid, however, a dependent claim may nevertheless survive, and may still be broad enough to bar competitors from valuable commercial territory.


Wikipedia


----------



## jacmyoung

Curtis52 said:


> Wikipedia


So we are clear now dependent claims are to further narrow the scope of the independent claims?

Let's suppose the independent claims 31 and 61 are rejected, but the new dependent claims manage to survive, it does not change the fact that an amendment seeks to further narrow the claims in order to overcome prior art rejection, took place. As such the court is precluded from finding of infringement under the doctrine of equivalents.

What left standing are just the few new claims, which among other things, describe some "transform object" that can support two independent external objects, no more no less. Aside from the fact new claim elements are introduced and a new action will be required with new Markman hearing to construct the new claim terms, and aside from the fact the court may no longer find infringement by the equivalents, how likely do you think TiVo may win the next round?

That is even to assume that those several dependent claims can actually stand on their own, I think deep down even you do not believe it can happen. Those few new dependent claims say nothing about any DVR process, without claims 31 and 61 for clarification or to depend on, they are simply not discriptive enough to be allowed. A claim, standing on its own, must be descriptive and detailed enough so a person of *ordinary skill* in the field of the invention can duplicate the art *without undue experimentation*. Can a person with ordinary skill, reading those few new claims alone, without claims 31 and 61, copy them and make a DVR without any technical thinking by himself?

Of course if claims 31 and 61 survive the rejection due to the narrowing new dependent claims, the preclusion rule will still apply, E* should be free. TiVo may go after E* in a new action still, the above scenario will repeat itself.


----------



## CuriousMark

Are you saying that while Dish's DVRs are shut down under the injunction that it will no longer be possible for Dish to show their new workaround is non-infringing in a summary process? Are you telling us that Dish will now have to go to trial and do all new new Markman hearings? 

If that is the case, those DVRs could be off for years.


----------



## Greg Bimson

jacmyoung said:


> So we are clear now dependent claims are to further narrow the scope of the independent claims?


Hogwash.

An unmodified independent claim is not narrowed by a modified dependant claim. You should know that from all the hardware claims that were found as infringements prior to being reversed at the Court of Appeals.

If claims 31 and 61 are unchanged, the infringement still stands, the injunction still stands, and the claims do not have a more narrow definition due to the addition of some dependant claims.


----------



## tivonomo

Greg Bimson said:


> Hogwash.
> 
> An unmodified independent claim is not narrowed by a modified dependant claim. You should know that from all the hardware claims that were found as infringements prior to being reversed at the Court of Appeals.
> 
> If claims 31 and 61 are unchanged, the infringement still stands, the injunction still stands, and the claims do not have a more narrow definition due to the addition of some dependant claims.


I feel like I've been trying to tell him this for years... the ironic thing is that jacmyoung admits that these are MRV related claims (and not alternative time warp claims) yet he still thinks the original claims have been narrowed in some way. Narrowing claims 31 and 61 would require modifying those claims. Adding more dependent claims as TiVo did, clearly does not narrow claims 31 and 61. TiVo is simply trying to make a point to the examiner and make explicit how claims 31/61 clearly teach a method for external devices. They considered these as clarification amendments and in TiVo's opinion they do not enlarge the scope of the original patent.


----------



## Curtis52

Greg Bimson said:


> An unmodified independent claim is not narrowed by a modified dependant claim.


Yep. The tail doesn't wag the dog.


----------



## tivonomo

Curtis52 said:


> Yep. That tail doesn't wag the dog.


Did we just figure out Blue's Clues? :hurah:


----------



## jacmyoung

CuriousMark said:


> Are you saying that while Dish's DVRs are shut down under the injunction that it will no longer be possible for Dish to show their new workaround is non-infringing in a summary process? Are you telling us that Dish will now have to go to trial and do all new new Markman hearings?
> 
> If that is the case, those DVRs could be off for years.


No

First off there is no shut down, let's not get too far ahead of ourselves. What I am saying is there is virtually no chance TiVo can even prove E* DVRs still infringe because it is undisputed that the DVRs have been modified, i.e. not the exact copies of the previous ones, therefore literal infringement is already almost out of question, then the court is barred from finding of infringement by the equivalents. For that reason, the infringement finding during the contempt proceeding should be reversed, because the infringement was found under the doctrine of equivalents. Or at a minimum, Judge Folsom should easily approve the E* new design around for implementation.

The only question is, when does this preclusion rule kick in? After the amendment is made, or after the PTO accepts such amendment?


----------



## jacmyoung

Greg Bimson said:


> Hogwash.
> 
> An unmodified independent claim is not narrowed by a modified dependant claim. You should know that from all the hardware claims that were found as infringements prior to being reversed at the Court of Appeals.
> 
> If claims 31 and 61 are unchanged, the infringement still stands, the injunction still stands, and the claims do not have a more narrow definition due to the addition of some dependant claims.


Dependent claims in this case most certainly narrow the scope of the independent claims, because TiVo said so. If not, then there is no purpose of them, because as TiVo said themselves the purpose of them is to try to overcome the rejection of claims 31 and 61 by prior art.

Regardless, any amendment with the goal of trying to ovecome claim rejection by prior art, precludes the finding of infringement by the equivalents with respect to that claim. In this case they are claims 31 and 61. It does not even matter what those new claims are, as long as TiVo had said the purpose of the amendment is to overcome the rejection of the claims 31 and 61 by the two prior art references, then the court may no longer find infringement by the equivalents with respect to claims 31 and 61. The court may still find literal infringement of claims 31 and 61.

The question I asked was, will the preclusion kick in only if the PTO accepts the amendment? Based on my reading, there did not seem to have such requirement. As long as such amendment is in the record of the patent prosecution history, which it is in this case, the preclusion should kick in. But I am not certain of it.


----------



## jacmyoung

Curtis52 said:


> Yep. The tail doesn't wag the dog.


Have you even tried?


----------



## tivonomo

jacmyoung said:


> Dependent claims by definition narrow the scope of the independent claims, if you disagree, then we just have to agree to disagree.


You can't agree to disagree on a cold hard fact.

Dependent claims are narrowing of independent claims but DO NOT narrow the overall patent.

Dependent claims have 3 advantages (as opposed to simply just a patent with independent claims):

1. They provide clarification of the independent claim language
2. They may later be found to be valid even if the independent claim that it is based on is found to be invalid.
3. They provide claim differentiation when an independent claim may _seem _narrow by itself.


----------



## jacmyoung

tivonomo said:


> You can't agree to disagree on a cold hard fact. Dependent claims are narrowing of independent claims but DO NOT narrow the overall patent...


I have modified my statement somewhat, but as long as you agree in this case, the new claims do narrow the independent claims 31 and 61, that is all I am saying, I never said they narrow the overall patent, because the overall patent is not even relevant here, only the two claims 31 and 61.

E* did not infringe on any of the 61 claims in the TiVo patent, except two, claims 31 and 61.

If the new claims do not serve any function in overcoming the rejection of the claims 31 and 61, then claims 31 and 61 should again be rejected. After that, as I explained to Curtis, by simple reading of those new claims, they cannot be granted because when they stand on their own, they do not disclose any invention at all.


----------



## James Long

jacmyoung said:


> ... the new claims do narrow the independent claims 31 and 61 ...


But the narrowing is done in the new claims and the actual claims 31 and 61 remain unmodified independent of any new claims made.

EG: I claim this is a chair.








I can come back later and claim that it is a wooden chair but it does not change the initial claim that it is a chair.
I can even come back later and claim that it is a four legged chair although visual evidence is lacking in the illustration.

In this case TiVo claims that their invention is what is included in claims 31 and 61. No additional claims now reduce the original claims.


----------



## scooper

James Long said:


> But the narrowing is done in the new claims and the actual claims 31 and 61 remain unmodified independent of any new claims made.
> 
> EG: I claim this is a chair.
> 
> 
> 
> 
> 
> 
> 
> 
> I can come back later and claim that it is a wooden chair but it does not change the initial claim that it is a chair.
> 
> In this case TiVo claims that their invention is what is included in claims 31 and 61. No additional claims now reduce the original claims.


So then there is nothing stopping the PTO from rejecting the claims 31 / 61 , since the amendments aren't changing them. And Tivo should not be allowed to add any further claims that expand what's already there.


----------



## jacmyoung

scooper said:


> So then there is nothing stopping the PTO from rejecting the claims 31 / 61 , since the amendments aren't changing them. And Tivo should not be allowed to add any further claims that expand what's already there.


That is the point. If the new claims do not further narrow claims 31 and 61, then TiVo's such amendment serves no purpose at all, while such amendment clearly put TiVo in much greater disadvantage when they go after any accused infringers, since they will have to prove literal infringement, a much more difficult task.

Is TiVo stupid or something? If not, then the only conclusion one can make is, the proposed claims do narrow claims 31 and 61 in the hope that the two claims may survive further rejection.

The above logic is based on the clear statement by TiVo that this amendment is made in order to overcome any likely further PTO rejection of claims 31 and 61. As long as this is the case, arguing whether the new claims are narrowing claims or not is not even meaningful, because as long as an amendment is made to overcome prior art rejection, such amendment by law precludes the court from finding of infringement under the doctrine of equivalents.


----------



## James Long

jacmyoung said:


> As long as this is the case, arguing whether the new claims are narrowing claims or not is not even meaningful, because as long as an amendment is made to overcome prior art rejection, such amendment by law precludes the court from finding of infringement under the doctrine of equivalents.


There is quite a bit of the argument that is not meaningful or helpful ... but I suppose there is some entertainment value.


----------



## jacmyoung

James Long said:


> There is quite a bit of the argument that is not meaningful or helpful


True.



> ... but I suppose there is some entertainment value.


I have a feeling neither E* nor TiVo, nor the court considers the statement below a mere entertainment value:



> When there is amendment made to overcome claim rejection by prior art, such amendment precludes the court from finding of infringement under the doctrine of equivalents with respect to the claim.


Literally millions upon millions, and the livelihood of business upon business, can be at stake just with this one rule alone. I am sure when the TiVo attorneys looked at its options and decided to propose that amendment, it was no laughing matter.


----------



## Greg Bimson

jacmyoung said:


> When there is amendment made to overcome claim rejection by prior art, such amendment precludes the court from finding of infringement under the doctrine of equivalents with respect to the claim.


Here is your misunderstanding...

"...with respect to the claim."

If Claims 31 and 61 are in full standing and unchanged, then those claims haven't been amended. Which means the entire statement above does not apply. It is only when claims 31 and 61 are changed (amended) that the above rule can apply.

Just because there are new claims added to the patent doesn't mean claims 31 and 61 were ever amended.

And this is all just a stalling tactic.


----------



## jacmyoung

Greg Bimson said:


> Here is your misunderstanding...
> 
> "...with respect to the claim."
> 
> If Claims 31 and 61 are in full standing and unchanged, then those claims haven't been amended. Which means the entire statement above does not apply. It is only when claims 31 and 61 are changed (amended) that the above rule can apply.
> 
> Just because there are new claims added to the patent doesn't mean claims 31 and 61 were ever amended.


The rule never said the claim in question must be amended/modified, only that where there is amendment made in order to overcome prior art rejection of a claim, the court is precluded from finding infringement by the equivalents with respect to such claim. No where in the above statement requires that the claim itself must be modified.

Amendments take many forms and shapes. The rule does not limit the amendment to any specific form, as long as the amendment serves to overcome any claim rejection by prior art.



> And this is all just a stalling tactic


When TowerGuy first speculated this, I agreed. It is now TiVo's turn to stall, but such stall tactic also revealed the fact TiVo's very patent claims, critical to this case and other future cases, are in serious trouble, it is an admission to such fact. Parties in dispute will look at such development and take it into account when they consider future course of actions.

When the very patent claims that are supposed to bring TiVo all the fortune, are on the verge of been tossed, how likely do you think Charlie will settle? Or anyone else for that matter?


----------



## Greg Bimson

jacmyoung said:


> Amendments take many forms and shapes. The rule does not limit the amendment to any specific form, as long as the amendment serves to overcome any claim rejection by prior art.


I'm getting tired of arguing English...

If Claim 31 and Claim 61 are exactly the same five years ago and five years from now, those claims have NOT been amended. At all.

As a matter of fact, TiVo's recent submission did not amend Claims 31 and 61. At all.


----------



## scooper

Greg Bimson said:


> I'm getting tired of arguing English...
> 
> If Claim 31 and Claim 61 are exactly the same five years ago and five years from now, those claims have NOT been amended. At all.
> 
> As a matter of fact, TiVo's recent submission did not amend Claims 31 and 61. At all.


Correct. Therefore - if the PTO was ready to overturn them then - nothing has changed now.


----------



## jacmyoung

Greg Bimson said:


> I'm getting tired of arguing English...
> 
> If Claim 31 and Claim 61 are exactly the same five years ago and five years from now, those claims have NOT been amended. At all.
> 
> As a matter of fact, TiVo's recent submission did not amend Claims 31 and 61. At all.


Do you agree an amendment has been made by TiVo? Do you agree TiVo said this amendment was to satisfy the PTO in the event the claims 31 and 61 were to be finally rejected, that if so this amendment should be considered by the PTO to overcome the rejection?

Let's put the argument aside for a moment what impact, or lack of any to the claims 31 and 61, at a minimum, now TiVo has admitted that claims 31 and 61 might not have been valid in the first place, else why would TiVo propose such amendment to overcome rejection of claims 31 and 61? Had TiVo not done anything at all, simply appealed any rejection you can at least say there is no admission on TiVo's part the claims 31 and 61 may not be valid.

Now that TiVo had made such statement, can the court really blame E* for not willing to pay a ransom of $3 to $4/mo/box for such claims TiVo itself had already implied are likely invalid in the first place? If not, how the court should proceed from this point on?

Why do you think the court set the rule that when the patent owners make an amendment to overcome claim rejections by prior art, the court may no longer find infringement by the equivalents on that claim? You don't happen to think the court issued the ruling just for entertainment value, do you?


----------



## tivonomo

jacmyoung said:


> Do you agree an amendment has been made by TiVo? Do you agree TiVo said this amendment was to satisfy the PTO in the event the claims 31 and 61 were to be finally rejected, that if so this amendment should be considered by the PTO to overcome the rejection?


Yes, TiVo has made an amendment to add 8 new claims to the patent. TiVo said that those new claims could possibly still be patentable if claims 31/61 are rejected.



jacmyoung said:


> now TiVo has admitted that claims 31 and 61 might not have been valid in the first place, else why would TiVo propose such amendment to overcome rejection of claims 31 and 61? Had TiVo not done anything at all, simply appealed any rejection you can at least say there is no admission on TiVo's part the claims 31 and 61 may not be valid.


Once again this is all clear in the letter to the USPTO. TiVo said clearly that they felt all open issues on claims 31/61 should be resolved and requested to reissue the patent. There is no such admission by TiVo that their claims should might not be valid. They want them reinstated and will appeal to the CAFC if they need to.

Also, I defined reasons for dependent claims for you yesterday. Please take a minute to study this before going on to repetitively make the same wrong assumptions.

I realize you probably won't agree on the majority interpretation on this but it feels like this issue has been thoroughly discussed. Let's wait until the second half of the year and see what the USPTO actually decides. I feel like we are... :beatdeadhorse:


----------



## tivonomo

scooper said:


> Correct. Therefore - if the PTO was ready to overturn them then - nothing has changed now.


Or ready to uphold them...


----------



## jacmyoung

tivonomo said:


> Or ready to uphold them...


Uphold what, the 8 new claims? Have you read them? They do not disclose any invention at all, even if you combine all 8 together, they do not disclose anything even close to some DVR process.

But if you believe TiVo is trying to replace claims 31 and 61 with these 8 new claims, in the event that claims 31 and 61 are rejected, and even if the PTO accepts such things, once it happens, E* is free, because claims 31 and 61, the only two claims E* had ever infringed upon, will have been declared invalid from the very beginning, *with TiVo's acceptance*, i.e. the declaration will be final, no appeals will happen.

TiVo can try to prove that E* still infringes on those 8 new claims, but they will have to do so in a new action because new claims are involved, new claim constructions will be conducted. The end result will be no different really, no matter how you try to explain it.

If you are saying that TiVo is simply adding 8 new claims, as if the reexamination or the rejection of claims 31 and 61 did not happen, or the amendment had nothing to do with the reexamination/rejection, well you can have your opinion, I can tell you such thing does not happen. But even if there is such a thing, it should not be part of the reexamination, such amendment should have been filed under the original patent application, not under the proceeding of this reexamination, TiVo would have done it totally wrong. But since I believe the TiVo lawyers are likely correct, my conclusion is you are wrong.


----------



## tivonomo

jacmyoung said:


> Uphold what, the 8 new claims? Have you read them ... <ranting> ... my conclusion is you are wrong.


Calm down!

Take a second to read the post that I quoted. It clearly references only claims 31 and 61.

Like I said, this TiVo letter has been thoroughly discussed until we get further news from the USPTO. Like scooper, I agree with what Greg wrote:



Greg Bimson said:


> I'm getting tired of arguing English...
> 
> If Claim 31 and Claim 61 are exactly the same five years ago and five years from now, those claims have NOT been amended. At all.
> 
> As a matter of fact, TiVo's recent submission did not amend Claims 31 and 61. At all.


----------



## jacmyoung

tivonomo said:


> Calm down!
> 
> Take a second to read the post that I quoted. It clearly references only claims 31 and 61.
> 
> Like I said, this TiVo letter has been thoroughly discussed until we get further news from the USPTO. Like scooper, I agree with what Greg wrote:


Greg has been tired of arguing English too many times, but don't drag Scooper into such mode, he never said he was tired of arguing English, he is just pissed off by this patent system of ours. Hopefully our latest conversation gives him some comfort in that our legal system is not as bad as he thinks You on the other hand is still relatively new, haven't earned enough right to tell us what we should or should not discuss


----------



## James Long

jacmyoung said:


> You on the other hand is still relatively new, haven't earned enough right to tell us what we should or should not discuss


With all due respect, that would my job. Please don't encourage me to interfere this thread by continuing to talk about people on this forum. (This applies to all posters.)

If we have to have silence until the next actual court/PTO action to keep the forum civil that can be arranged. Please, don't make me put the mod hat on. Nobody seems to be happy when I do that! 

:backtotop (Everyone)
TiVo vs DISH/SATS ... the case ... the appeal.
A little less rambling on just to fill the server with more text.
Thanks!


----------



## jacmyoung

So it is 4/21, the end date for TiVo to reply to E*’s petition. TiVo did file its reply on 4/14. Will see if the court would invite E* for reply or not.

Meanwhile, I continue to think all eyes out there are not on the ball


----------



## tivonomo

jacmyoung said:


> So it is 4/21, the end date for TiVo to reply to E*'s petition. TiVo did file its reply on 4/14. Will see if the court would invite E* for reply or not.


The process for en banc does not allow for E* to reply to TiVo's response.

The rest of the process happens behind closed doors until we get a decision. A poll of the 11 active judges at the CAFC needs to be requested by Friday. If it is not requested, the en banc is denied. If a poll is requested, I believe it takes 7-10 days at a maximum to conduct a poll (it could take shorter).

Finally, a dissenting judge could write a response to the en banc decision and is given 3 days. Then the decision on having an en banc is given.

Essentially, a decision can come any day between now and the first week of May... depending on how slow the judges are. Based on other en banc decisions in the past month or two, we should expect something before next Wednesday.


----------



## jacmyoung

tivonomo said:


> The process for en banc does not allow for E* to reply to TiVo's response.
> 
> The rest of the process happens behind closed doors until we get a decision. A poll of the 11 active judges at the CAFC needs to be requested by Friday. If it is not requested, the en banc is denied. If a poll is requested, I believe it takes 7-10 days at a maximum to conduct a poll (it could take shorter).
> 
> Finally, a dissenting judge could write a response to the en banc decision and is given 3 days. Then the decision on having an en banc is given.
> 
> Essentially, a decision can come any day between now and the first week of May... depending on how slow the judges are. Based on other en banc decisions in the past month or two, we should expect something before next Wednesday.


I have read quite a few en banc cases where both parties are invited to file reply and sur-reply. Not saying it will happen though. In any event if it is denied, there will be dissenting filings, and in such instance the dissenting opinions will address the Supreme Court, used by E* to follow through with its clearly intended appeal to the Supreme Court.

Either way, long live this thread! Did I mention all eyes might be on the wrong ball here?


----------



## tivonomo

jacmyoung said:


> I have read quite a few en banc cases where both parties are invited to file reply and sur-reply.


I believe that you are thinking about the actual en banc hearing and briefing. This is just a petition for en banc/panel rehearing. In this case, there is no sur-reply brief by E* and the reply by TiVo needed to be requested by at least one judge.



> Did I mention all eyes might be on the wrong ball here?


What do you mean by that?


----------



## jacmyoung

tivonomo said:


> I believe that you are thinking about the actual en banc hearing and briefing.


No, I was talking about reading actual decisions on en banc petitions, whether denied or granted.



> ...In this case, there is no sur-reply brief by E* and the reply by TiVo needed to be requested by at least one judge.


I am not sure the request for sur-reply must be made at the same time or not, all I am saying is, I have read decisions on en banc petitions where parties had been invited to file replies and sur-replies, before the decisions were made.



> What do you mean by that?


If I tell you, I will have to kill you Seriously, it should be obvious but if you do not know, there is no point telling you now, let's wait and see.


----------



## Kheldar

jacmyoung said:


> If I tell you, I will have to kill you Seriously, it should be obvious but if you do not know, there is no point telling you now, let's wait and see.


Dude, you sound like my ex-girlfriend: "If you don't know why I'm mad at you, then I'm sure not going to tell you." There's a reason she's my ex.


----------



## tivonomo

jacmyoung said:


> No, I was talking about reading actual decisions on en banc petitions, whether denied or granted.


Well then it should be hard for you to give a case like that. Until then, I will assume you are confused because the CAFC rules are very detailed and do not mention any option to request a response from E*.



jacmyoung said:


> If I tell you, I will have to kill you Seriously, it should be obvious but if you do not know, there is no point telling you now, let's wait and see.


----------



## jacmyoung

tivonomo said:


> Well then it should be hard for you to give a case like that. Until then, I will assume you are confused because the CAFC rules are very detailed and do not mention any option to request a response from E*.


If the rule does not allow any judge to invite a sur-reply, then those decisions (the decisions to grant en banc petitions or not) I read where the court said both sides were invited to file responses and sur-replies, were lies?

Are you saying only one or more judges may invite TiVo to file a response to E*'s petition, but one or more judges cannot invite E* to file a response to TiVo's response?


----------



## tivonomo

jacmyoung said:


> If the rule does not allow any judge to invite a sur-reply, then those decisions (the decisions to grant en banc petitions or not) I read where the court said both sides were invited to file responses and sur-replies, were lies?
> 
> Are you saying only one or more judges may invite TiVo to file a response to E*'s petition, but one or more judges cannot invite E* to file a response to TiVo's response?


They must have been cases prior to the current CAFC rules.


----------



## tivonomo

Kheldar said:


> Dude, you sound like my ex-girlfriend: "If you don't know why I'm mad at you, then I'm sure not going to tell you." There's a reason she's my ex.


Totally.

I believe jacmyoung is trying to insinuate that Google is coming to the rescue.


----------



## James Long

tivonomo said:


> Totally.
> 
> I believe jacmyoung is trying to insinuate that Google is coming to the rescue.


I'm waiting for the "statement" to be turned into a "see I told you so" when something actually happens in the case. It is the benefit of being vague.


----------



## jacmyoung

tivonomo said:


> Totally.
> 
> I believe jacmyoung is trying to insinuate that Google is coming to the rescue.


As vague as I may sound, I can tell you this, you are so far off from what I was vague about


----------



## tivonomo

James Long said:


> I'm waiting for the "statement" to be turned into a "see I told you so" when something actually happens in the case. It is the benefit of being vague.


Well, you can wait for that and I will wait for the en banc case that allows for a sur-reply under the current CAFC rules which do not allow one...


----------



## Curtis52

tivonomo said:


> Well, you can wait for that and I will wait for the en banc case that allows for a sur-reply under the current CAFC rules which do not allow one...


I'm still trying to figure out how a judge will know how the other judges voted when he puts an "X" in one of the three boxes on the en banc ballot. I'm even more confused on how he would fit a dissension filing addressed to the Supreme Court inside the box he marks with his vote.


----------



## Tower Guy

jacmyoung said:


> As vague as I may sound, I can tell you this, you are so far off from what I was vague about


OK if it's not Google, how about DirecTV?


----------



## jacmyoung

Tower Guy said:


> OK if it's not Google, how about DirecTV?


Clearly no, the FCC wouldn't allow it. My "vague" reference has to do with this case, remember this thread is about this court case?


----------



## jacmyoung

Curtis52 said:


> I'm still trying to figure out how a judge will know how the other judges voted when he puts an "X" in one of the three boxes on the en banc ballot. I'm even more confused on how he would fit a dissension filing addressed to the Supreme Court inside the box he marks with his vote.


As judge Rader said, there are generally three separate goals of a dissent opinion by a circuit judge. One it may be written for the legal community, one it may be written to the judge's own panel majority in an attempt to change their mind, the other is to speak to the Supreme Court when the issue is carried to that level by the parties.

In this case, Judge Rader's dissenting opinion was written in such a powerful and passionate way one can think of it as an attempt to change his panel majority's mind, also the minds of any other circuit judges who may agree with the panel majority, whether he is successful or not will be seen in this en banc decision. If the en banc petition is granted, Judge Rader will have succeeded, even if the ultimate en banc ruling is unknown.

If the en banc petition is denied, then Judge Rader, and any other dissenting judges (if there are any) will write their dissenting opinions, when they do so in such occasion, the dissenting opinions will be written with the Supreme Court as the audience, i.e. asking the Supreme Court to review the case.

According to Judge Rader, the dissenting opinions written for each of the above goals have different styles and emphasis, because they have their own unique audiences in mind. The judges themselves only need to write them, they do not have to be concerned of issues such as which bulletin board to pin the documents on so it does not get blown away, or whether there is sufficient postage on the envelope


----------



## jacmyoung

tivonomo said:


> Well, you can wait for that and I will wait for the en banc case that allows for a sur-reply under the current CAFC rules which do not allow one...


Apparently Charlie did not wait for any invitation to reply E* motioned the court on 4/19 to file a brief by 5 law professors in support of E*'s petition, TiVo replied on 4/20. The court has designated TiVo's reply as "reply 1".

Maybe the court can invite E*, maybe not, but it appears the court now "invites" E*'s reply to TiVo's reply of the E*'s motion


----------



## tivonomo

jacmyoung said:


> Apparently Charlie did not wait for any invitation to reply E* motioned the court on 4/19 to file a brief by 5 law professors in support of E*'s petition, TiVo replied on 4/20. The court has designated TiVo's reply as "reply 1".
> 
> Maybe the court can invite E*, maybe not, but it appears the court now "invites" E*'s reply to TiVo's reply of the E*'s motion


TiVo replied and said exactly what I said earlier. It is not within the rules of en banc. Hopefully, E* is not getting their legal advice from their interns... :grin:


----------



## Tower Guy

jacmyoung said:


> Clearly no, the FCC wouldn't allow it. My "vague" reference has to do with this case, remember this thread is about this court case?


I meant DirecTV merging with TiVo.


----------



## jacmyoung

tivonomo said:


> TiVo replied and said exactly what I said earlier. It is not within the rules of en banc. Hopefully, E* is not getting their legal advice from their interns... :grin:


Unless you believe you have any standing among the TiVo legal team

But the fact is the court now "invites" reply from E*, which takes on the usual time allowed to do, then TiVo might do "reply 3"...

Your theory of a desicion by Friday or next Wednesday can be in danger


----------



## jacmyoung

Tower Guy said:


> I meant DirecTV merging with TiVo.


The FCC wouldn't allow this.


----------



## Tower Guy

jacmyoung said:


> The FCC wouldn't allow this.


Why not?


----------



## Greg Bimson

Tower Guy said:


> I meant DirecTV merging with TiVo.





jacmyoung said:


> The FCC wouldn't allow this.


I don't think the FCC would have any bearing on any merger decision, as TiVo doesn't have "licenses".

If anything, it would be the Department of Justice's Federal Trade Commission (FTC) that would have an issue.


jacmyoung said:


> But the fact is the court now "invites" reply from E*, which takes on the usual time allowed to do, then TiVo might do "reply 3"...


I could be wrong, but a request for a reply doesn't have any bearing on the process for _en banc_. The court has the documents they've requested and can make up their mind _independently_ of a motion filed by DISH/SATS with support of five law professors.

According to the CAFC's own rules, I don't think this stalling tactic will have any teeth.


----------



## jacmyoung

Greg Bimson said:


> I don't think the FCC would have any bearing on any merger decision, as TiVo doesn't have "licenses".
> 
> If anything, it would be the Department of Justice's Federal Trade Commission (FTC) that would have an issue...


Sorry, I thought he meant DirecTV merging with E*. No, DirecTV merging with TiVo will have no bearing on this lawsuit, so no, that was not what I hinted at.



> I could be wrong, but a request for a reply doesn't have any bearing on the process for en banc. The court has the documents they've requested and can make up their mind independently of a motion filed by DISH/SATS with support of five law professors.
> 
> According to the CAFC's own rules, I don't think this stalling tactic will have any teeth.


I could be wrong too, but when the court set the original 4/21 as TiVo's deadline to respond to E*'s petition, it meant the clerk of the court would not even bring the filings to the judges for consideration until after 4/21. When TiVo filed its response on 4/14, ahead of the deadline, E* then motioned the court on 4/19, TiVo then responded to the motion on 4/20, then the clerk of the court designated it as "reply 1" also on 4/20, all of which occurred before the 4/21 deadline, it likely meant all filings are on hold until the usual replies on this motion issue are complete, before the clerk will prepare all the documents for the judges to read, that is to assume there will be no more additional motions.

Procedurally, TiVo might have asked the clerk of the court to dismiss E*'s motion on 4/20 without delay, but TiVo did not succeed because the clerk marked TiVo's reply as "reply 1", anticipating "reply 2" from E*, and possible "reply 3" from TiVo... Had the clerk of the court dismissed E*'s motion on pure procedural ground on 4/20, then yes the judges would have likely received all the filings and ready to prepare for a vote.


----------



## jacmyoung

The motion(s), unless dismissed by the clerk of the court on pure procedural ground, will have to be addressed by the motion's panel formed by one or more circuit judges, in this case likely en banc too. After the allowed replies and sur-replies are complete, the motion filings will be transmitted to that motion's panel to rule on. That can take some time.

Since this E* motion before the court is E*'s motion for the court to consider the briefing by the 5 law professors in support of E*'s petition, therefore unless the motion is dismissed by the clerk of the court, it will have to be decided by the motion's panel later, and the motion's panel's decision cannot come *after* the en banc decision on the petition for rehearing, because the motion itself is about the support briefing filed by the professors to grant the E* petition for rehearing en banc.

The decisions on the motion and on the petition can come at the same time, just that the decision on the petition cannot come before the decision on the motion. For that reason, the minimum delay will be the time for the motion's panel to issue a decision on the motion.

Again, I could be wrong too.


----------



## tivonomo

jacmyoung said:


> Unless you believe you have any standing among the TiVo legal team
> 
> But the fact is the court now "invites" reply from E*, which takes on the usual time allowed to do, then TiVo might do "reply 3"...
> 
> Your theory of a desicion by Friday or next Wednesday can be in danger


It really isn't that hard to goto the CAFC website and look at the rules. I don't need to be on any legal team to know what the rules are.

I'm still waiting for you to post a link with one of your statements... now you are talking about this delaying the process. Show me the CAFC rule where considering the motion would delay the process. It does not. There would have to be an order by the judges considering the motion to say why the rules should be modified and to set additional deadlines.


----------



## jacmyoung

tivonomo said:


> It really isn't that hard to goto the CAFC website and look at the rules. I don't need to be on any legal team to know what the rules are.


The point was not whether you are on any legal team or not, rather by your using that "intern" joke, you clearly consider yourself more significant than you really are. Because that joke would not have even crossed the minds of most members here. Most of us know we are just a bunch of idiots arguing for argument sake

Now that "ex-girlfriend" joke was very good, unfortunately it was not yours. You borrowed it from someone else from way back when, which actually showed your desparation But that is just IMHO, you do not have to agree.



> I'm still waiting for you to post a link with one of your statements... now you are talking about this delaying the process. Show me the CAFC rule where considering the motion would delay the process. It does not. There would have to be an order by the judges considering the motion to say why the rules should be modified and to set additional deadlines.


If you can see the point that the motion will go through its own course, and the en banc decision on the petition cannot happen unless the decision on the motion is rendered, then you should reach the same conclusion I made, no need to find a link. It is simple logic.

If A cannot happen unless B happens, if B takes two weeks to happen, then it will take A at least two weeks to happen, I hope it is clear now.


----------



## Greg Bimson

jacmyoung said:


> Since this E* motion before the court is E*'s motion for the court to consider the briefing by the 5 law professors in support of E*'s petition, therefore unless the motion is dismissed by the clerk of the court, it will have to be decided by the motion's panel later, and the motion's panel's decision cannot come *after* the en banc decision on the petition for rehearing, because the motion itself is about the support briefing filed by the professors to grant the E* petition for rehearing en banc.


I think it is more simple than the above statement.

DISH/SATS files a motion for a rehearing or a hearing _en banc_. The panel considers the motion and then can either:
1) Grant the motion
2) Reject the motion
3) Ask the opposing party for a sur-reply to determine whether the motion should be granted or declined.

The panel went with the third choice. The panel gave TiVo two weeks file a reply and TiVo took one week. The panel received the reply they requested so now the panel can go do the thing they do, as all procedural issues are complete.

That doesn't mean DISH/SATS has the ability to file even one or millions more motions in support of their motion for rehearing. It should not delay any decision, as the CAFC panel has all of the documentation they requested.


----------



## jacmyoung

Greg Bimson said:


> ...as the CAFC panel has all of the documentation they requested.


That is where I disagree with you. Keep in mind neither of us knows for sure, so there is some level of speculation involved.

I don't think the en banc panel has all the necessary docs yet. One must at least believe both legal teams know the procedurals. When TiVo filed its response on 4/14, it clearly tried to move things along. When E* filed its motion on 4/19, it clearly tried to slow things down.

Were you correct that E*'s motion would have no effect, E* would have filed the motion sooner. The motion is to ask the en banc panel to read the professors' briefing before making the en banc decision. Whether such motion is granted or denied will determine if the en banc panel will have to read the professors' briefing, or not, before rendering the decision on en banc rehearing.

That is why I am saying, unless the motion is denied by the clerk of the court, as TiVo tried to do on 4/20 but failed, otherwise the motion must be ruled on before the en banc panel will possibly know if they will have to read the professors' briefing or not.


----------



## tivonomo

jacmyoung said:


> Now that "ex-girlfriend" joke was very good, unfortunately it was not yours. You borrowed it from someone else from way back when, which actually showed your desparation But that is just IMHO, you do not have to agree.


Once again, you do not have your facts straight. Someone else said that joke.. I believe it was Kheldar. But you are right, it was very good.

The only personal comment I have for you is to occassionally support your arguments with facts... preferrably with a link.



jacmyoung said:


> The point was not whether you are on any legal team or not, rather by your using that "intern" joke, you clearly consider yourself more significant than you really are.


It wasn't really a joke. I was merely emphasizing the fact that the rules do not allow such a sur-reply. Any lawyer should know that... And to suggest it will delay the en banc is pure speculation on your part. Given that E* waited 4 days to submit their motion, it could very well be too late.


----------



## jacmyoung

tivonomo said:


> Once again, you do not have your facts straight. Someone else said that joke...


Did you not read what I said, "unfortunately it was not yours&#8230;?"



> The only personal comment I have for you is to occassionally support your arguments with facts... preferrably with a link.


You definitely had more "personal comments" than that. Had I responded to each and everyone of them, I'd be out of here



> It wasn't really a joke.


If not, maybe it was an insult? You know the word "intern" seems to fit the bill. I think you should just admit it was a joke, it is better that way


----------



## tivonomo

jacmyoung said:


> Did you not read what I said, "unfortunately it was not yours&#8230;?"


Talk about factually dishonest... you edited this out:



jacmyoung said:


> You borrowed it from someone else from way back when, which actually showed your desparation


Seriously, that was totally inappropriate and factually inaccurate.

And again, I based my comment on E*'s legal team on the facts straight from the CAFC rules. Greg appears to have read them as well. I am still waiting for you to show just one case where a sur-reply was allowed. If you show me that I won't compare E*'s lawyers to their interns.


----------



## jacmyoung

tivonomo said:


> ...And again, I based my comment on E*'s legal team on the facts straight from the CAFC rules. Greg appears to have read them as well. I am still waiting for you to show just one case where a sur-reply was allowed. If you show me that I won't compare E*'s lawyers to their interns.


That is not much of a promise you know, but here it is:

http://www.cafc.uscourts.gov/opinions/10-5012o.pdf



> A petition for initial hearing en banc or, in the alternative, a motion for summary affirmance was filed by the Appellants. A response thereto was invited by the court and filed by the Appellee. A reply thereto was invited and filed by the Appellants.


Interestingly, with E*'s current motion, the two cases become quite similar in terms of procedures. In the Beer case, there was a petition and a motion, both were decided on the same day, one by the en banc panel, one by the motion's panel.

If you read the dissenting judges in the Beer en banc order, you will understand what I meant by saying the dissenting judges were speaking to the Supreme Court. The motion panel also granted the motion for affirmance so to prepare the case for review by the Supreme Court.

In any event, both sides were invited by the en banc panel to file reply and sur-reply. Those invitations for replies were related to the petition for en banc, not related to the motion because replies and sur-replies related to a motion were automatic, needed no "invitations". In addition, the invitations were mentioned in the en banc order, made by the en banc panel, not metioned in the motion's order.

I am sure you continue to think very little about the E* legal team, probably no better than the interns. You might be surprised that I actually do not totally disagree with you on this one

Now here we know there is a standing motion, and a "reply 1" also, so why don't we wait and see if, or when will there be a "reply 2" or even "reply 3"? Here again, unless the motion is dismissed, whether the en banc panel is compelled to consider the professors' brief is unknown.

Think about it, if the en banc panel renders a decision to deny the petition for en banc rehearing, then later the motion's panel grants the motion to review the professors' brief in support of E*'s petition, wouldn't it be a big awkward situation? You don't want to give Charlie another chance to appeal, do you?

Now I will say this, it is not certain how soon the motion will be decided. There might still be the possibility that the clerk of the court could dismiss it, but if not, the motion will have to be decided by a motion's panel, and only after that decision is made, can the decision on the petition also be made.


----------



## tivonomo

jacmyoung said:


> That is not much of a promise you know, but here it is:
> 
> http://www.cafc.uscourts.gov/opinions/10-5012o.pdf


Try again.

The sur-reply was requested in this case for the motion for summary affirmance and not the en banc. And even if you choose to ignore that it also says a response was invited on that motion. There was no such invitation for a response from E* on the en banc.


----------



## jacmyoung

tivonomo said:


> Try again.
> 
> The sur-reply was requested in this case for the motion for summary affirmance and not the en banc. And even if you choose to ignore that it also says a response was invited on that motion. There was no such invitation for a response from E* on the en banc.


Sur-reply in a motion proceeding needs no invitation, it is automatic. Again as I said, the link above is the *en banc order*, not the *motion's order*. On the same day the motion's order was also rendered, it did not mention any "invitations" because "invitations" have nothing to do with a motion proceeding, rather to do with an en banc proceeding.

You are correct so far we have not seen any invitation for E* to reply on the petition issue, that is not the argument here, the point is, I have provided proof that invitations were made from both parties on the issue of the petition for en banc, they had nothing to do with that motion. There is no need to "invite" reply in a motion.


----------



## jacmyoung

I will also say this, personally I do not see an invitation for E*'s reply coming from the en banc panel, the reason will have to be explained later so the fun will continue

But my link above is proof that when it comes to en banc proceedings, the en banc panel can invite anyone to reply if they wish to. I have read cases where parties not part of the litigation were invited to file briefs.


----------



## tivonomo

jacmyoung said:


> I will also say this, personally I do not see an invitation for E*'s reply coming from the en banc panel, the reason will have to be explained later so the fun will continue
> 
> But my link above is proof that when it comes to en banc proceedings, the en banc panel can invite anyone to reply if they wish to. I have read cases where parties not part of the litigation were invited to file briefs.


It is not proof. It was a motion for summary affirmance and initial hearing en banc. Not even close to what we are discussing here. Try again.


----------



## Greg Bimson

I'm breaking this in pieces, to show the problem:


> A petition for initial hearing en banc or, in the alternative, a motion for summary affirmance was filed by the Appellants.


This would be DISH/SATS initial motion for hearing en banc (and rehearing).


> A response thereto was invited by the court and filed by the Appellee.


And the panel asked TiVo for a response.


> A reply thereto was invited and filed by the Appellants.


But the panel didn't "invite" DISH/SATS for this brief which contains the opinion of five law professors.

Simple.

Since I haven't read it, I can only go by what I've seen, I assume the document filed by DISH/SATS with five law professors in support is another motion. That would be why TiVo's response is "Reply #1".

Otherwise, if this new document is not a motion, it is worthless, as TiVo pointed out to the court. One only needs to read the standard procedures at the CAFC, and surprisingly enough it can be found on their website...


----------



## jacmyoung

Greg Bimson said:


> I'm breaking this in pieces, to show the problem:This would be DISH/SATS initial motion for hearing en banc (and rehearing)


No, hearing en banc is not done by a motion, rather by a petition. Petition and motion are two different things.

In the Beer case, there was a petition for a hearing en banc, but also a motion to affirm the agency's ruling based on another CAFC case. The reason for the motion was, in the event that the petition was denied, the petitioners asked the CAFC motion panel to affirm the decision by another related case so the issue could be pushed to the Surpreme Court for an ultimate resolution.

With the respect to the petition in that case, invitations were made to both parties to file their own responses.



> .And the panel asked TiVo for a response.


Yes it invited TiVo for a response.



> But the panel didn't "invite" DISH/SATS for this brief which contains the opinion of five law professors.


The panel did not invite E* to file a reply to TiVo's response, that is not to say they cannot invite E* to file a reply. They do not have to invite E*, but they can if they want to.

The motion E* filed is not a reply to TiVo's response, it is a motion to (asking) the court to consider the professors' brief when the court consider whether to grant the petition or not.



> Simple.


Not simple at all if you read through the Beer case try to figure out what they all meant To understand it better, it will be very helpful if you also read the motion's order in the Beer case.



> Since I haven't read it, I can only go by what I've seen, I assume the document filed by DISH/SATS with five law professors in support is another motion.


There is only one motion so far, not another.



> That would be why TiVo's response is "Reply #1".


The "reply 1" is under the header of this only motion, not even in the same web page used for the petition. The motions have their own web page, the petition has its own separate web page.


----------



## jacmyoung

Greg Bimson said:


> ...Otherwise, if this new document is not a motion, it is worthless, as TiVo pointed out to the court. One only needs to read the standard procedures at the CAFC, and surprisingly enough it can be found on their website...


This "new document" is not a motion, it is a brief, written by the 5 law prefessors. TiVo never said the law professors' brief was worthless. What TiVo said was, E*'s motion to (or asking) the court to consider the brief, yes the motion, not the brief, had no bearing on the petition for en banc rehearing. As such, TiVo argued it should not have to file a reply to this E*'s motion, but on alternative, TiVo would actually file a reply to this E*'s motion if necessary.

The court nevertheless designated TiVo's such response to E*'s motion as "reply 1". It could mean several different things:

1) Maybe the clerk mistakenly marked it as "reply 1", which is unlikely but possible.

2) Maybe the clerk treated the TiVo response as a reply, called it "reply 1", anticipating additional replies to follow from E*, then again by TiVo.

3) Or maybe the court, by marking the TiVo's response as "reply 1" is telling TiVo, yes, it is necessary that you file a formal reply to E*'s motion, as TiVo you said you would do on the alternative.

4) Or it could be that it is all a big mistake, tomorrow we will find out the motion is denied, and the petition is denied too, or the motion is granted and so is the petition, or the motion is granted but the petition is denied, or the motion is denied but the petition is granted...simple?

What will not happen is where the petition is denied without a decision on the motion.


----------



## jacmyoung

So the court granted E*'s motion yesterday, now the decision on the petition can come any time.

BTW Tivonomo, you should hope the decision does not come too fast. The sooner the decision, the more likely it is in E*'s favor. Not for certain, just likelihood. You might be surprised again when I say this, for selfish reasons, I actually do not mind if the petition is denied, so I can read the dissenting opinions. Otherwise we will not hear from those circuit judges for awhile.


----------



## sigma1914

Are all of you guys/gals arguing this topic lawyers? Or involved legally in the case? I'm just curious...not trying to flame anyone.


----------



## dfd

sigma1914 said:


> Are all of lawyers? Or involved legally in the case? I'm just curious...not trying to flame anyone.


Huh?


----------



## sigma1914

dfd said:


> Huh?


Fixed post...It's early. :lol:


----------



## tivonomo

sigma1914 said:


> Are all of you guys/gals arguing this topic lawyers? Or involved legally in the case? I'm just curious...not trying to flame anyone.


Current and past lawyers for E* and TiVo aren't allowed to comment pubicly on the case without permission.


----------



## jacmyoung

tivonomo said:


> Current and past lawyers for E* and TiVo aren't allowed to comment pubicly on the case without permission.


But what about the interns?


----------



## sigma1914

tivonomo said:


> Current and past lawyers for E* and TiVo aren't allowed to comment pubicly on the case without permission.





jacmyoung said:


> But what about the interns?


Ok...what about you two and others here debating? Are you lawyers, interns, etc?


----------



## scooper

most of us are just regular people. There is at least one practicing lawyer (although his specialty isn't this kind of IP law).


----------



## dgordo

It would be fine for former tivo and echostar attorneys to comment on the case as long as they never worked on this case. 

It would also be fine for attorneys who formerly worked at law firms representing companies in this case to comment on the case as long as they never worked on this case. 

I personally know one lawyer involved in this case, but I have never discussed the case with him nor would I ever try to get him to comment on the case.


----------



## jacmyoung

sigma1914 said:


> Ok...what about you two and others here debating? Are you lawyers, interns, etc?


Other than dgordo, most of us do not even reach the significance of an intern


----------



## phrelin

jacmyoung said:


> Other than dgordo, most of us do not even reach the significance of an intern


I beg your pardon. I'm at least as significant as an intern.


----------



## jacmyoung

phrelin said:


> I beg your pardon. I'm at least as significant as an intern.


Yeah right, you also thought you were as significant as an analyst, remember? How did that work out for you?


----------



## dgordo

Well, I'm no where near as significant as an intern for Morgan Chu.


----------



## jacmyoung

dgordo said:


> Well, I'm no where near as significant as an intern for Morgan Chu.


You are too modest, I am sure had you been an intern with Mr. Chu, you would have spoken against TiVo's proposal to the PTO to replace its existing software claims with those new amended claims.

The two software claims TiVo agreed to replace, if the PTO adopts it, therefore to be thrown away, are essential to this entire litigation, without them, TiVo has no case aginst E*.


----------



## phrelin

jacmyoung said:


> Yeah right, you also thought you were as significant as an analyst, remember? How did that work out for you?


I'm getting paid the same salary for both.


----------



## jacmyoung

phrelin said:


> I'm getting paid the same salary for both.


Only if we assume both the intern and the analyst are paid significant money, but can we make such assumption?


----------



## deaincaelo

I'm definitely not a lawyer, just a geek and a critic of the USPTO. I'm definitely a little scared that they seem to be allowing overly broad patents to encompass ideas that are clearly and rightfully in the public domain. Tivo seems to have a patent that encompasses any form of recording tv, although that ought to be clearly wrong. If there are meaningful limits to Tivo's patent It would take someone much better versed than myself (maybe someone who can find the markman hearings) to find it. 

I'll still say the 510 is just a VCR with a satellite tuner and a hard drive though.


----------



## jacmyoung

deaincaelo said:


> I'm definitely not a lawyer, just a geek and a critic of the USPTO. I'm definitely a little scared that they seem to be allowing overly broad patents to encompass ideas that are clearly and rightfully in the public domain. Tivo seems to have a patent that encompasses any form of recording tv, although that ought to be clearly wrong. If there are meaningful limits to Tivo's patent It would take someone much better versed than myself (maybe someone who can find the markman hearings) to find it.
> 
> I'll still say the 510 is just a VCR with a satellite tuner and a hard drive though.


I agree with your comment on the USPTO, however as pointed out several times before, E* cannot just blame the others. They screwed up on many occasions too, to the point that I began to think maybe Charlie wanted to fail. Hopefully in the latest motions and filings they had pointed out the fact not only the PTO had invalidated the software claims, the only claims E* ever was found to infringe, but more importantly, TiVo had conceded that the software claims are invalid, proposed the new claims to take their place.

If E* continued to fail to make such argument, then it is their own fault, they deserve the repeated defeat. Frankly I don't even care what E* is saying anymore, just wait to see what happens.


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## tivonomo

deaincaelo said:


> I'll still say the 510 is just a VCR with a satellite tuner and a hard drive though.


TiVo did not patent recording TV. TiVo patented a method of DVR trick play... all the things you can do to "live TV" on a DVR while other shows are recording. What makes TiVo's patent valuable is that it patents the optimization of recording and playback during the trick play process.


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## tivonomo

jacmyoung said:


> Hopefully in the latest motions and filings they had pointed out the fact not only the PTO had invalidated the software claims, the only claims E* ever was found to infringe, but more importantly, *TiVo had conceded that the software claims are invalid, proposed the new claims to take their place*.


You have been disproven by everyone here on this point including a Mod. Why do you continue to state something as fact when it clearly is not? TiVo conceded absolutely nothing on the software claims and that is 100% truth.


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## jacmyoung

tivonomo said:


> You have been disproven by everyone here on this point including a Mod. Why do you continue to state something as fact when it clearly is not? TiVo conceded absolutely nothing on the software claims and that is 100% truth.


Please speak for yourself, not the others.

TiVo said clearly in its amendment that should the PTO found the two software claims "unpatentable" TiVo proposed that the PTO certified the 8 new claims instead. What that means is, should the PTO again invalidate the two software claims, but nevertheless agrees with TiVo to certify the 8 new claims, the two software claims will be offcially gone, no more.

Again you can disagree with me, just don't pretend that everyone else does too. If someone else disagrees, he can feel free to dispute my above statement. Just don't speak for him, only yourself.

So far I have not heard anyone else disputing my above statement, only you.


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## tivonomo

jacmyoung said:


> Please speak for yourself, not the others.


Are you serious? Please tell me that you are joking. There was a whole page of people trying to explain dependent claims and what they were. Now you are revisiting the issue like that discussion never happened.

Are you delusional or just trying to cause trouble?


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## scooper

tivonomo said:


> Are you serious? Please tell me that you are joking. There was a whole page of people trying to explain dependent claims and what they were. Now you are revisiting the issue like that discussion never happened.
> 
> Are you delusional or just trying to cause trouble?


Why don't you ask that question of yourself first ?

If those last two claims are rejected - there is no more '389 patent that can be used against Echostar / Dish et al. Tivo cannot arbitrarily add the additional claims and then go after Echostar with them - it will have to be an entire new court action - from the beginning.


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## jacmyoung

tivonomo said:


> Are you serious? Please tell me that you are joking. There was a whole page of people trying to explain dependent claims and what they were. Now you are revisiting the issue like that discussion never happened.
> 
> Are you delusional or just trying to cause trouble?


Maybe you are, you know thinking those whole pages of people when it was just yourself

The dependent claims proposed by TiVo are dependent on the two software claims only if the software claims are reinstated, if the software claims are invalidated, the 8 new claims will no longer be dependent claims of the two software claims.

What TiVo proposed is, in such case, the PTO nevertheless certifies those 8 new claims, presumably they will then be dependent on the two hardware claims instead, since the hardware claims disclose such "transform objects" too you know.

But the bottomline is, if the PTO does what TiVo proposed it to do, the two software claims will be gone, no more, non-existent. In other words this whole case will be over.

Alternatively you can say, if TiVo is proposing the 8 dependent claims in an effort to overcome the rejection of the two software claims, then if such attempt should succeed, it will be because the 8 new claims serve to *narrow* the two software claims, such as restricting them to only those DVRs that have at least two independent external outputs. In such case all E*'s 5XX DVRs will be off the hook. Therefore should the court approves the new design for implementation for the 625s, this case is also over.

Pick your poison.


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## Greg Bimson

jacmyoung said:


> TiVo had conceded that the software claims are invalid, proposed the new claims to take their place.





jacmyoung said:


> TiVo said clearly in its amendment that should the PTO found the two software claims "unpatentable"...


Which is it? Those two statements are mutally exclusive. Only one can be true.

TiVo didn't concede anything. And even if the PTO finds the two software claims unpatentable, TiVo can stil appeal to the courts and hold this up for years to come.


scooper said:


> If those last two claims are rejected - there is no more '389 patent that can be used against Echostar / Dish et al. Tivo cannot arbitrarily add the additional claims and then go after Echostar with them - it will have to be an entire new court action - from the beginning.


Completely correct.

But any action like that is entirely a long way out.


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## jacmyoung

Greg Bimson said:


> Which is it? Those two statements are mutally exclusive. Only one can be true.


One is a dramatized version of the other Of course TiVo will not concede that the claims 31 and 61 will be invalidated by the PTO, but the fact TiVo proposes that in that event, TiVo asks the PTO to certify the 8 new claims, is an admission that TiVo does not intend to try to rescue the two software claims, if the PTO invalidates them. As such you can say TiVo has resigned to the possibility (conceded) that the two software claims may be gone for good.



> TiVo didn't concede anything. And even if the PTO finds the two software claims unpatentable, TiVo can stil appeal to the courts and hold this up for years to come.Completely correct.


Not if the PTO does what TiVo proposed it to do, that is, finds the two software claims unpatentable, but nevertheless certifies the 8 new claims to replace them.



> But any action like that is entirely a long way out.


As said above, if the PTO does that, the software claims will be gone for good, TiVo will not appeal, because this is what an amendment is about, a proposal to overcome the rejection by prior art is all about.

Do not propose any amendment, but if you do, you automatically give up some things.


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## tivonomo

scooper said:


> Why don't you ask that question of yourself first ?


Why don't you ask yourself the question?

I think we've already established the fact that TiVo didn't concede anything 4 pages ago. Greg, Curtis, James, myself, all tried to explain that the original claims were not amended.

Yet jacmyoung in his own words "dramatized" the facts... in other words TiVo didn't concede anything but jacmyoung felt the need to say they did.


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## jacmyoung

tivonomo said:


> ... all tried to explain that the original claims were not amended...


I don't care who concluded that, it cannot happen, not in a reexamination when the issue is the rejection of certain claims by prior art.

There is no such thing that the patent owner may use such reexamination opportunity to turn the reexamination into an advantage. Stop thinking it that way, it does not happen.

The best the patent owners can hope is the claims in questions are reinstated without any amendment, i.e. nothing added to it, if not, the next thing the patent owners can hope is, an amendment may overcome such rejection.

TiVo had proposed to *add* 8 new claims, that is an amendment. These additions cannot possibly make things better than had the reexamination/rejection not happened. If so, no one will ever try to do any reexaminations.


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## tivonomo

jacmyoung said:


> I don't care who concluded that, it cannot happen, not in a reexamination when the issue is the rejection of certain claims by prior art.
> 
> There is no such thing that the patent owner may use such reexamination opportunity to turn the reexamination into an advantage. Stop thinking it that way, it does not happen.


We all agree that TiVo can't broaden its patent. I've already posted for all to see the facts on what can and cannot be added. Look at my old posts.

But the fact remains that claims 31 and 61 are INDEPENDENT of the 8 new claims. Those dependent claims are an application of the reference claims. The dependent claims are obviously narrower than claims 31/61.

If TiVo loses on claims 31/61 years from now, they could possibly lose because of the broadness of the original claims. They could then argue that the narrower dependent claims were not conceived by the combination of prior art and then those claims might be upheld.

As Greg said, this is years down the road after many appeals. But the bottom line is that the original claims are unmodified.


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## jacmyoung

tivonomo said:


> ...If TiVo loses on claims 31/61 years from now...


But with this amendemnt, and I am not saying this amendment is to amend the two software claims, just that it is an amendment to overcome the software claim rejection by prior art.

If the PTO actually accepts this TiVo's amendment while rejecting the software claims, but nevertheless agrees to certify the 8 new claims, there will be no appeal, it will be the end of this reexamination. A recertification means the reexamination is over. TiVo asked for such recertification to end the reexamination, if the PTO agrees, this whole PTO proceeding will be over. There will be no "years from now".


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## tivonomo

jacmyoung said:


> TiVo asked for such recertification to end the reexamination, if the PTO agrees, this whole PTO proceeding will be over. There will be no "years from now".


You forgot an "and", as in "TiVo asked for such recertification *and* to end the rexaimination."


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## jacmyoung

tivonomo said:


> You forgot an "and", as in "TiVo asked for such recertification *and* to end the rexaimination."


What is the difference? Once it ends, there is no appeal, no "years from now". Are you saying the PTO can recertify but still let the reexamination continue? If so it cannot recertify, the PTO can continue to reject, or choose to recertify and end the reexamination.

What I am saying is, if the PTO again rejects the two software claims, and recertify, as TiVo proposed, the 8 new claims, this reexamination will be over, so are the two software claims. There will be no appeal, because TiVo asked for such recertification, TiVo gets it.

The recertified TiVo's patent will have all the old hardware claims, plus the 8 new claims, minus the two software claims.


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## tivonomo

jacmyoung said:


> What is the difference? Once it ends, there is no appeal, no "years from now"... There will be no appeal, because TiVo asked for such recertification, TiVo gets it.
> 
> The recertified TiVo's patent will have all the old hardware claims, plus the 8 new claims, minus the two software claims.


TiVo has the right to appeal any ruling that the CAFC/USPTO makes. TiVo wants to add the claims and reinstate the contested claims. As James said we've gone through this exact conversation before... and back then you were unable to post anything that TiVo said that agrees with your completely counter-intuitive claim.


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## jacmyoung

tivonomo said:


> TiVo has the right to appeal any ruling that the CAFC makes...


You mean the PTO? I have quoted what TiVo said in its filing, unfortunately I cannot quote it again. You will have to go look for it.

If the PTO certifies this reexamination as TiVo asked the PTO to do, then it will be the end of this reexamination, there will be no appeal, it will not be a ruling the PTO makes, rather an amendment the patent owner makes and accepted by the PTO. Therefore there cannot be an appeal, the patent owner cannot appeal an action proposed by himself.


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## Curtis52

"All of the stated grounds of objection and rejection have been properly traversed, 
accommodated, or rendered moot. The Patent Owner therefore respectfully requests that the Examiner reconsider all presently outstanding objections and rejections and that they be withdrawn."

TiVo asks for the issuance of an intent to file a Reexamination Certificate. This is not the certificate itself, just a document stating an intent to file a certificate. Depending on what the intent document says, TiVo can appeal for years if they want to before the actual certificate is filed. It is my belief however, that TiVo has had several conversations with the examiner and that all concerns have been remedied.


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## jacmyoung

Curtis52 said:


> ... TiVo can appeal for years if they want to before the actual certificate is filed.


But not after. If the PTO issues an intent to file such certificate, accepting TiVo's proposal, then obviously the certification will be issued soon, after that it is over, no appeal.



> It is my belief however, that TiVo has had several conversations with the examiner and that all concerns have been remedied.


Does that include what TiVo said in its amendment that, should the PTO found the two software claims unpatentable, the PTO should certify the 8 new claims, therefore resolve all issues? Is that what you had implied? If so we shall soon see a new TiVo patent recorded, with all the hardware claims intact, with the 8 new claims added, and with the two software claims dropped.

Did you mean that?


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## jacmyoung

It appeared today the TiVo "insider trade" is still happening? If so there is still no "merger" or "buyout" going on, looking good for us


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## jacmyoung

In another case yesterday the CAFC granted an en banc review:

http://www.cafc.uscourts.gov/opinions/08-1511o.pdf

Please be clear that although there are similarities, the above can not be used to predict the outcome of the en banc petition in this case, but I only want to make this one point:

In the above order the en banc panel invited the USPTO to participate in the review process. This refutes the assertion that anything going on at the USPTO is irrelevant to the appeal in an infringement case.

I can only hope that E* did raise the reexamination issue with the en banc panel. It is clear that not only the original USPTO's office action had proven that E*'s modified DVRs no longer infringed, more importantly, the latest TiVo's amendment further renders the software claims almost certainly on a path to be thrown out, which can result in this whole case being thrown out.

As shown above, the en banc panel will ask the PTO to participate, if only E* had made a clear impression on them with regard to the reexamination proceeding.


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## dgordo

jacmyoung said:


> In another case yesterday the CAFC granted an en banc review:
> 
> http://www.cafc.uscourts.gov/opinions/08-1511o.pdf
> 
> Please be clear that although there are similarities, the above can not be used to predict the outcome of the en banc petition in this case, but I only want to make this one point:
> 
> In the above order the en banc panel invited the USPTO to participate in the review process. This refutes the assertion that anything going on at the USPTO is irrelevant to the appeal in an infringement case.
> 
> I can only hope that E* did raise the reexamination issue with the en banc panel. It is clear that not only the original USPTO's office action had proven that E*'s modified DVRs no longer infringed, more importantly, the latest TiVo's amendment further renders the software claims almost certainly on a path to be thrown out, which can result in this whole case being thrown out.
> 
> As shown above, the en banc panel will ask the PTO to participate, if only E* had made a clear impression on them with regard to the reexamination proceeding.


You should read the decision from the district court and the CAFC as to why the USPTO has been asked to file an amici curiae brief.


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## jacmyoung

dgordo said:


> You should read the decision from the district court and the CAFC as to why the USPTO has been asked to file an amici curiae brief.


The point is, the en banc panel can, if E* does a good enough job, take the USPTO's actions into consideration.

Here is another thing related to the USPTO reexamination, the 5 professors made the same point I made, that when an amendment was made by TiVo to overcome the two software claims rejection by prior art, the court is now precluded from a finding of infringement under the doctrine of equivalents.

There is no dispute that during the contempt proceeding, the only infringement found by the court was the infringement of the two software claims by equivalents. Once TiVo submitted that amendment, such infringement finding must be vacated.

Now I am not saying in the end the en banc panel will have to buy such argument, but to say that the 5 professors' such contention does not deserve a review when the above preclusion rule was established by the CAFC?

Things are changing, TiVo made that amendment, such issue was not available to the district court nor to the merits panel, E* and the 5 professors motioned the en banc panel to review such issue, the motion was granted.


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## tivonomo

It appears that TiVo caught the "5 professors" (who filed the Amici Curiae on Dish's behalf) in a big lie. The 5 professors had indeed been paid for giving advice to institutional clients on this case.


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## jacmyoung

tivonomo said:


> It appears that TiVo caught the "5 professors" (who filed the Amici Curiae on Dish's behalf) in a big lie. The 5 professors had indeed been paid for giving advice to institutional clients on this case.


As suppose people should work for free? Where is your capitalist spirit?

The professors said they had no personal financial interest in either party involved in this case. So are the experts, some witnesses, and the court, even though they are all paid in one way or another by the parties involved in the case. The parties pay the court fees in order to have a lawsuit you know. Sometimes when the appeals court rules against one party, it will ask the party to pay for the court cost too, do you suppose the losing party can later appeal on the ground that the decision was invalid because the court wanted to collect money from them?

When did TiVo "catch the lies" by the 5 professors? I thought TiVo did not even respond, TiVo said the motions were irrelevant, needed not to be responded to.


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## TiVo

jacmyoung said:


> ...
> When did TiVo "catch the lies" by the 5 professors? I thought TiVo did not even respond, TiVo said the motions were irrelevant, needed not to be responded to.


TIVO did not need to respond. The "professors" confessed themselves: (grabbed from a post on investor village):

TIVO MUST HAVE discovered some questionable conduct from the "group of 5 professors". Apparently they had been paid consultants to hedge funds involved in the case over the last 5 years. Below is the "professors response" to the court on being called out. This probably pulls the teeth on the amicus brief.

Robert P. Merges

Wilson, Sonsini, Goodrich & Rosati Professor of Law

Co-Director, Berkeley Center for Law & Technology

April 28, 2010 Re: Case No. 2009-1374

Clerk of Court

United States Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

Dear Sir:

At the request of TiVo's counsel, I am writing to offer some additional information related to the amicus filing I submitted on Monday in TiVo v. EchoStar. Specifically, counsel has asked that I explain more fully any interactions that the amicus law professors have had with private clients with respect to this case. I am happy to do so.

During the six-year pendency of this case, the law professors who signed the amicus brief have had many opportunities to discuss the issues raised. As we wrote in the brief, in addition to discussing the issues with our students and with the media, *we have also discussed the case with paying private clients*. This has included (among other things) offering investment advice to institutional investors that have had large positions in, and made buy-and-sell decisions with respect to, securities of one or more of the parties. There has been no inconsistency between the views we previously offered in private and the views we now offer in public. Moreover, as previously noted, none of us has any personal financial interest in any of the parties to the case or their related entities.

Out of an abundance of caution, I ask that this letter be distributed alongside our original filing, as I would very much like to show respect for counsel's view that this additional information is helpful to the court.

Very truly yours,

Robert P. Merges

University of California, Berkeley


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## tivonomo

TiVo said:


> TIVO did not need to respond. The "professors" confessed themselves: (grabbed from a post on investor village):
> 
> TIVO MUST HAVE discovered some questionable conduct from the "group of 5 professors". Apparently they had been paid consultants to hedge funds involved in the case over the last 5 years. Below is the "professors response" to the court on being called out. This probably pulls the teeth on the amicus brief.


For 5 professors they don't seem to pay much attention to SEC law... they will surely be investigated.. the reasons why will have to be left to another more appropriate forum. But I believe that this can only hurt Dish's cause... if anything. I don't think amici curiae filings really help anyone. In TiVo vs Dish so far there have 4 amicus curiae filings and none of them have supported the winning side yet. In general, I think amicus curiae are a sign of weakness in an argument. If the argument were strong enough alone, there would be no need for a second party to echo those thoughts.


----------



## jacmyoung

Thanks for the information. TiVo's attorneys asked the professors some questions and apparently such questions were not relevant to the legal questions at hand, but out of caution the professors decided to not only answer them to TiVo's attorneys, but filed the answers to the court.

They obviously do not have holdings in either TiVo or E*, but discussed the cases for years and some of them were paid by E* to advise them on the issues related to the case, they also were paid to advise institutional investors on how to invest in the companies based on the legal development.

And their advices remain the same today as a few years back. Seems to me if large institutional investors paid them to gave advices, those professors' opinions are important. And the fact their opinions have not changed a bit should have some impression on the judges do you not think?

So we now have 5 professors who had always agreed with E*, and still do, plus Judge Rader is also 100% on E*'s side. What else do you see potential problems in the above "confession"?

As I said earlier, people get paid all the time to be expert witnesses, many of those witnesses actually do this for a living, many actually do have personal financial interest in the parties, for example some are actually employed by the parties, the court never has problem considering their expert testimonies/opinions, does it?

I am not saying the professors' opinions WILL make any difference, but where are the "lies"? Back when ACT filed their brief in support of TiVo, did anyone try to find out what kind of industry connections ACT had with all kinds of companies? They sounded as if they spoke for small investors, but a simple Google would tell you they work with large companies such as MSFT and the like. Did ACT lie?


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## jacmyoung

tivonomo said:


> For 5 professors they don't seem to pay much attention to SEC law... they will surely be investigated..


Yeah right, I think if you want people to think you are credible, then at least try to make credible assertions.



> ... if anything. I don't think amici curiae filings really help anyone. In TiVo vs Dish so far there have 4 amicus curiae filings and none of them have supported the winning side yet. In general, I think amicus curiae are a sign of weakness in an argument. If the argument were strong enough alone, there would be no need for a second party to echo those thoughts.


Maybe, I do not totally disagree. The link I provided above demonstrated that amicus curiae filings do have impact. But usually I don't see them making much difference, it is not as if they are saying anything new.

What will be different is if the court invites parties to file amicus curiae briefs.


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## tivonomo

jacmyoung said:


> Thanks for the information. TiVo's attorneys asked the professors some questions and apparently such questions were not relevant to the legal questions at hand, but out of caution the professors decided to not only answer them to TiVo's attorneys, but filed the answers to the court.


You do realize that if the professor said anything different that they could be going to jail? That is why we can't conclude anything from their response other than there is a potential conflict here.

One thing for certain is this. If they advised clients that TiVo would lose @ the CAFC and now are arguing with the CAFC to try and make that happen, that is a conflict of interest that should have been disclosed without requiring TiVo's objection...

Regarding their actual amici curiae, I stopped reading it mid-way through the first page.


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## James Long

tivonomo said:


> In general, I think amicus curiae are a sign of weakness in an argument. If the argument were strong enough alone, there would be no need for a second party to echo those thoughts.


It could be used to get around a page limit on a filing. I've seen some filings in this case where the court limited the filing to 10 or 20 pages. If DISH feels they need the extra pages the amicus could complete the argument. (Set it up and make the point, among others, in the permitted filing and let someone else explain the finer details.)

I'd rather see the arguments in the parties filing. I doubt the court enjoys the extra reading. If they did, they would not limited the size of briefs.


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## jacmyoung

tivonomo said:


> You do realize that if the professor said anything different that they could be going to jail?


What do you mean anything different? What difference are you talking about?



> ...That is why we can't conclude anything from their response other than there is a potential conflict here.
> 
> One thing for certain is this. If they advised clients that TiVo would lose @ the CAFC and now are arguing with the CAFC to try and make that happen, that is a conflict of interest that should have been disclosed without requiring TiVo's objection...


First off, conflict of interest never applies to non-decision makers, you seem very knowledgeable on some issues but not the others. If they had advised some investors not to buy TiVo because TiVo would lose, later TiVo won, the investors lost, they may not want to pay those professors again, but if the professors later manage to impress the court to give E* a win, more power to them, maybe more investors will be impressed and want to use the professors' service again There is no "conflict of interest" to speak of. If there is, all lobbyists should all go to jail, I know some will say great! But you get my point.

Secondly, where did TiVo object to anything on this one? All we know is TiVo's attorney asked the professors some questions, and the professors answered. TiVo never objected to the motions, they only said the motions were irrelevant, no reply needed.


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## tivonomo

jacmyoung said:


> Yeah right, I think if you want people to think you are credible, then at least try to make credible assertions.


One has to assume that their views would help convince people to short TiVo stock or buy DISH stock. According to TiVo, the professors made a material misrepresentation of their financial interests. Regardless of their intent, the appearance of trying to support their financial interests by lobbying the CAFC judges in this case without giving FULL DISCLOSURE, is in fact worthy of an SEC investigation and depending on specifics it could be illegal.


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## tivonomo

James Long said:


> It could be used to get around a page limit on a filing. I've seen some filings in this case where the court limited the filing to 10 or 20 pages. If DISH feels they need the extra pages the amicus could complete the argument.


Interesting point, but I don't think that is the reason for this particular amici curiae. These 4 of these 5 professors have a rather long history of working together on issues like this case. One paper I read concerned getting rid of the doctrine of equivalents.


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## jacmyoung

tivonomo said:


> One has to assume that their views would help convince people to short TiVo stock or buy DISH stock.


So are all the analysts, should they all go to jail? Anyone is allowed to lobby our government, it is called First Amendment.



> According to TiVo, the professors made a material misrepresentation of their financial interests. Regardless of their intent, the appearance of trying to support their financial interests by lobbying the CAFC judges in this case without giving FULL DISCLOSURE, is in fact worthy of an SEC investigation and depending on specifics it could be illegal.


First off, if such were an issue, it had been addressed, secondly, an investigation requires TiVo to file a complaint. You need to make sure let TiVo know they need to file that complaint. It is no use if you just tell us.


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## jacmyoung

tivonomo said:


> Interesting point, but I don't think that is the reason for this particular amici curiae. These 4 of these 5 professors have a rather long history of working together on issues like this case. One paper I read concerned getting rid of the doctrine of equivalents.


Law professors are part of the legal community which advises the Congress how to make laws. Even if we disregard this particular case, the voice from the legal community IMHO is more significant than the one from ACT.

And let's not forget most professors do work for a living too.


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## James Long

jacmyoung said:


> You need to make sure let TiVo know they need to file that complaint. It is no use if you just tell us.


I'm sure Tivo has plenty of lawyers ... no need to get personal and suggest a member of our forum must give them legal advice.

The same goes for the five professors ... I suspect that Tivo was just trying to discount their testimony by pointing out their connections. Not accuse them of manipulations or stock fraud or anything else.


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## tivonomo

jacmyoung said:


> So are all the analysts, should they all go to jail? Anyone is allowed to lobby our government, it is called First Amendment.


Analysts don't lobby the courts without disclosure. Even when an analyst goes on CNBC they are required to give disclosure of their financial interests in a company. That's all thanks to the SEC.



jacmyoung said:


> First off, if such were an issue, it had been addressed, secondly, an investigation requires TiVo to file a complaint. You need to make sure let TiVo know they need to file that complaint. It is no use if you just tell us.


Anyone can file a complaint with the SEC.


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## jacmyoung

tivonomo said:


> Analysts don't lobby the courts without disclosure. Even when an analyst goes on CNBC they are required to give disclosure of their financial interests in a company. That's all thanks to the SEC.


I did not say anything about analyst lobbying the court. There is no requirement for full disclosure before anyone can lobby the court, though if you do not fully disclose, and the opposing party does it for you, it may not look good, but still there is no requirement one must fully disclose in order to speak.



> Anyone can file a complaint with the SEC.


I know that. Some nutcakes filed complaints to the SEC against me several times for posting here too The only thing I ever knew about those complaints was they never had to provide full disclosures before and after filing their so called complaints.


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## jacmyoung

James Long said:


> ... no need to get personal and suggest a member of our forum must give them legal advice.


Oh you do not know them Or maybe you do, very well Nothing against Tivonomo, just doing a little disclosure of my own about the opposing side, learned this from TiVo's attorney


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## James Long

jacmyoung said:


> I did not say anything about analyst lobbying the court.


Who did you mean by "government" when you said this:


jacmyoung said:


> So are all the analysts, should they all go to jail? Anyone is allowed to lobby our government, it is called First Amendment.


If not the court, when did the five professors lobby the government?

Back to lobbying the court:


jacmyoung said:


> There is no requirement for full disclosure before anyone can lobby the court, though if you do not fully disclose, and the opposing party does it for you, it may not look good, but still there is no requirement one must fully disclose in order to speak.


It is best to point things out before your integrity is brought into question before a court (or any interviewer).


----------



## jacmyoung

James Long said:


> Who did you mean by "government" when you said this:


Our federal government consists of three branches, the Congress, the exec, and the judicial/court, can be any one of them, including any appropriate agency under it.



> If not the court, when did the five professors lobby the government?


When did I ever say the 5 professors did not lobby the court? The disclosure issue I was talking about with TiVonomo was in general, it should have been very clear when we discussed the SEC.



> Back to lobbying the court:It is best to point things out before your integrity is brought into question before a court (or any interviewer).


I am not so sure the word "integrity" is very appropriate in this case, I don't think if the professors did not provide full disclosure, their integrity will have been an issue, their opinions might have carried less weight. That is not the same as saying their integrity would have been in question. I have no doubt the court does not question the integrity of the 5 professors.

Look the bottomline is, the opinions will be read by the court, if our court is really the kind of court envisioned by the Constitution (sorry for the big word), only the opinions and the substance of them related to the legal issues will matter, not any of those street nonsense. Most of such side shows are just people trying to sensationalize the case, we are all guilty of it. But hopefully if our court is doing its job correctly none of the non issues should matter.


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## James Long

jacmyoung said:


> I did not say anything about analyst lobbying the court.





jacmyoung said:


> When did I ever say the 5 professors did not lobby the court?


Who did you mean by "government" when you said this:


> Anyone is allowed to lobby our government, it is called First Amendment.


It is a simple question ... *who did you mean*?
I know the branches of government, which one did YOU mean?


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## jacmyoung

James Long said:


> Who did you mean by "government" when you said this:
> 
> It is a simple question ... *who did you mean*?
> I know the branches of government, which one did YOU mean?


I have told you already, can be any one of them. Did I miss something? I am not so sure what you are leading into.


----------



## James Long

jacmyoung said:


> I have told you already, can be any one of them. Did I miss something? I am not so sure what you are leading into.


The story seems to keep changing ... they didn't lobby the court they did lobby the court. Just seeking clarity.


----------



## Albie

tivonomo said:


> It appears that TiVo caught the "5 professors" (who filed the Amici Curiae on Dish's behalf) in a big lie. The 5 professors had indeed been paid for giving advice to institutional clients on this case.


Not so sure this was a "big lie". Assuming the letter TiVo posted was the letter sent to the CAFC in this matter, then reading it would show (at least to me) that the 5 professors disclosed to the CAFC in their *brief* that they "discussed the case with private paying clients" and merely went on to clarify that those private paying clients were among others, institutional investors who had large positions in the securities of one or more of the parties involved.

Also not too sure the SEC is going to be too worried about this matter as the most pertinent facts were disclosed in the brief.


----------



## jacmyoung

Albie said:


> ...Assuming the letter TiVo posted was the letter sent to the CAFC in this matter...


So TiVo posted that letter to its investors in order to get them to get the SEC to investigate the 5 professors? How much more desperate can it be?


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## tivonomo

Albie said:


> Not so sure this was a "big lie". Assuming the letter TiVo posted was the letter sent to the CAFC in this matter, then reading it would show (at least to me) that the 5 professors disclosed to the CAFC in their *brief* that they "discussed the case with private paying clients" and merely went on to clarify that those private paying clients were among others, institutional investors who had large positions in the securities of one or more of the parties involved.


By TiVo, I assume you mean the message board user not the company. It is indeed the letter received by the CAFC. In terms of credibility, the fact that the 5 prof's are even going back to the CAFC and writing this letter in the first place should be revealing. The letter also fails in fully explaining their involvement which leads me to believe that there may be questionable conduct here.



Albie said:


> Also not too sure the SEC is going to be too worried about this matter as the most pertinent facts were disclosed in the brief.


I've seen far less significant things investigated by the SEC. It really depends on what specific trades were made considering the professors' advice and how recent this conflict of interest were. Simply the appearance of some funny business going on is enough to (eventually) get the SEC to look into the issues at hand.

IMO, what the Professors did (by not disclosing their relationships) isn't any different than an analyst going on CNBC and recommending a stock without acknowledging that they advised their clients to invest heavily in it before they went on TV. If you need any more convincing there was a reason the initial amici curiae went into details about their relationship to the clients in the case. It is required by the CAFC.


----------



## tivonomo

jacmyoung said:


> So TiVo posted that letter to its investors in order to get them to get the SEC to investigate the 5 professors? How much more desperate can it be?


TiVo (the Company) did not post the letter. Please read things a bit more before making such accusation about TiVo. All the info you need is contained earlier in this thread.


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## jacmyoung

tivonomo said:


> ... It is required by the CAFC.


Link?

Was ACT required to disclose their involvement with all the large companies before they filed their brief asserting that they were fighting for the little guys? Look if TiVo did not post that letter, it means TiVo knows there is no meat in such argument, it is just some TiVo investors rioting because they do not like the fact they had waited so many years without tripling their money.

I have news for you, if you want to blame someone, blame the court, it has been the court that allowed the case to go on and on, the court did not have to stay the actions, the PTO did not have to reject the TiVo's claims. You folks are mad at the wrong guys. It is our government that you need to go after


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## tivonomo

jacmyoung said:


> Link?


CAFC rules... page # somewhere in the 50's.



> I have news for you, if you want to blame someone, blame the court, it has been the court that allowed the case to go on and on, the court did not have to stay the actions, the PTO did not have to reject the TiVo's claims. You folks are mad at the wrong guys. It is our government that you need to go after


I don't really care to be lectured by you. Especially when your premise that I seek to blame someone is entirely false.


----------



## jacmyoung

Based on the fact Judge Folsom's stay order will run out tonight and there is still no action in his court from any party involved, below are some speculations:

Soon after the merits panel majority affirmed Judge Folsom's ruling, E* filed motion to request Judge Folsom to approve the new design around for implementation ASAP. Soon after, TiVo motioned the appeals court to immediately lift the stay of the injunction.

The above events were closely connected. While the merits panel did not address the stay of the injunction issue, E* wanted to overcome any possible lift of the injunction by seeking a quick approval of design around by Judge Folsom, because had the new design around been approved, whether the injunction were lifted or not by the appeals court would not have mattered.

TiVo clearly understood the risk of such outcome, motioned the appeals court to immediately lift the stay, had it succeeded in that motion, E* would have had no time to overcome the lift of the stay of the injunction.

Facing such risk, E* asked Judge Folsom to stay the injunction himself. That way if TiVo had succeeded in having the appeals court lift the stay, the injunction would still have been stayed by Judge Folsom. TiVo of course opposed E*'s such request.

While the parties were still waiting for Judge Folsom's decision, the appeals court denied TiVo's above motion to lift the injunction. At that point, the danger of the immediate lift of the stay was gone.

Next day (3/25) Judge Folsom agreed with E* for the most part, stayed his own injunction still 4/30. Such action ensured E* would not have to worry about the injunction while it petitioned the appeals court for the en banc rehearing. E* filed its petition 10 days later on 4/5, TiVo was asked to respond, which it did fairly quickly, E* then motioned to file the professors' briefs, the motion was granted.

At that point, it was clear that the appeals court would take a vote on the petition for en banc, which meant the stay of the injunction would not be lifted any time soon, not until the vote is taken and the judges have time to sort things out.

Knowing that the en banc petition would not be immediately resolved, E* knew they were in a safe time zone where the injunction will not be reinstated. Which was why even though the Judge Folsom's 4/30 deadline had arrived yet we did not see any additional action by E*, for example asking Judge Folsom to extend the stay.

Likewise Judge Folsom was aware of the development at the appeals court with regard to the petition, knowing that the stay of the injunction would continue for now, there was no immediate need for him to do anything to address the 4/30 deadline.

Let's see what may happen next.


----------



## jacmyoung

As stated some time ago when E* asked Judge Folsom to approve the new design around for implementation, a timely decision on such pre-approval request is very important, because the supposed infringer is now designing around the patent to avoid the supposed continued infringement. But the court had imposed a pre-approval requirement before such design around may be implemented to avoid infringement.

As Judge Folsom stated, he understood the ramifications if a resolution is not obtained with respect to the pre-approval request. If the court fails to review such request, the court will have forced the continued supposed infringement to take place, without the court blessing to avoid infringement. Even a new software download to disable the DVR functions but allow the receivers to remain functional, is a new design around, which by court order, must first receive the court approval before implementation.

Judge Folsom’s delay of review was due to a fully scheduled end of March and the good part of April case load, he stayed his injunction to 4/30, implying that he would likely have time to review the pre-approval request at the end of April.

But it did not happen. For the above reasons and the ramifications acknowledged by the court, if there is additional delay in a decision on the pre-approval, the likely reason will have to be that Judge Folsom anticipates the possibility that the appeals court could ultimately vacate his injunction, or at a minimum the pre-approval provision of the injunction. Because only then would there be no reason to waste the court economy to review the pre-approval request at this time.

That is if Judge Folsom continues to delay the pre-approval process without offering an explanation. I do think he will issue a decision soon, one way or another, but if we continue to see no court update on this issue, then the above possibility arises.


----------



## jacmyoung

Now this is getting a bit ridiculous. TiVo asked, and Judge Folsom agreed to add a "pre-approval" provision in the amended injunction, supposedly the court would take on the responsibility to decide the merits of any E*'s future actions aimed to avoid infringement, before the actions are to take place.

E* requested the review of such actions long ago. It was understandable when the court was booked solid at the end of March and the good part of April, pushed the review back to the end of April. But now a week after 4/30, still nothing?

Knowing that Charlie has used every loophole he could possibly find in our legal system to fight this lawsuit, why in the world would the court give him another good reason to argue that the court is responsible for the continued infringement or the delay in avoiding infringement? Who is now liable for the supposed continued infringement? Isn't this a good example of why there should never be a "pre-approval" provision in an injunction? If the court has no resources to handle it, don't subscribe to it.


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## scooper

There maybe a time and place for the review and approval before deployment - but this action was a little premature in my opinion in this case. Maybe after 3 or 4 different work around attempts that each went to appeal and back...


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## jacmyoung

scooper said:


> There maybe a time and place for the review and approval before deployment - but this action was a little premature in my opinion in this case. Maybe after 3 or 4 different work around attempts that each went to appeal and back...


I don't think there is a place for such pre-approval by the court at all. We know only one district case where the district judge finally ordered the infringer to seek pre-approval after three failed attempts at design around. But that case never reached any appeals review level.

The reason is as I said above, the court simply is not prepared for such review and approval, which has to be done on short notice. The patent owner has the opportunity later to capture a failed design around, seek damages and even sanctions.

But as it stands now, TiVo cannot try to capture E* for this period when E* shought the approval while the court fails to render a decision. Had there been no pre-approval requirement, E* would have been forced to download the new software ASAP to avoid infringement, TiVo would have been able to come back later to try to prove the new design still infringes. In that sense, the pre-approval provision actually works in E*'s favor.


----------



## scooper

jacmyoung said:


> I don't think there is a place for such pre-approval by the court at all. We know only one district case where the district judge finally ordered the infringer to seek pre-approval after three failed attempts at design around. But that case never reached any appeals review level.
> 
> The reason is as I said above, the court simply is not prepared for such review and approval, which has to be done on short notice. The patent owner has the opportunity later to capture a failed design around, seek damages and even sanctions.
> 
> But as it stands now, TiVo cannot try to capture E* for this period when E* shought the approval while the court fails to render a decision. Had there been no pre-approval requirement, E* would have been forced to download the new software ASAP to avoid infringement, TiVo would have been able to come back later to try to prove the new design still infringes. In that sense, the pre-approval provision actually works in E*'s favor.


The "right thing" for the court to do, in this kind of situation, would be to not award Tivo any further damages in the event the workaround DID have a problem, until such time as the court has said yea or nay on the workaround being deployed. And yes - this really does work against Tivo - ironic, since they asked for it (probably to try to convince Echostar / Dish to give up - fat chance of that happening !).


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## jacmyoung

scooper said:


> ... And yes - this really does work against Tivo - ironic, since they asked for it (probably to try to convince Echostar / Dish to give up - fat chance of that happening !).


To follow up on what you said above, let me go one step further by saying, yes, this might just be what Judge Folsom had in mind, be caredful what you ask for TiVo, you might just get it.

Think about this, if there were no pre-approval requirement, E* would likely have already installed the second design around, TiVo would likely come back with another contempt motion, Judge Folsom would again be tasked with some kind of hearings which would take months and expert testimonies, then he would be forced to make a decision again, with the likelihood of being appealed...

Now, it may appear that Judge Folsom had agreed with TiVo 100%, in reality he created a condition that he is now in full control of the development of the case, neither party can take the case to where he does not like it to go. TiVo cannot motion for contempt again without him first make a decision on what to do with the new design around.


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## Greg Bimson

It's a shame, really. There is just so much wrong with the legal interpretation. I'll simply start with this one:


jacmyoung said:


> Think about this, if there were no pre-approval requirement, E* would likely have already installed the second design around...


There currently is not a "pre-approval requirement". It is stayed. If DISH/SATS implements their workaround now, DISH/SATS can't possibly be found in contempt of a stayed injunction.

It shocks me that some arguments are this circular.


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## jacmyoung

Greg Bimson said:


> It's a shame, really. There is just so much wrong with the legal interpretation. I'll simply start with this one:There currently is not a "pre-approval requirement". It is stayed. If DISH/SATS implements their workaround now, DISH/SATS can't possibly be found in contempt of a stayed injunction.
> 
> It shocks me that some arguments are this circular.


It might be a good idea to have enough shock treatment so in the end a possible big shock is not so painful


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## jacmyoung

Nothing earth shaking, E* today requested Judge Folsom to extend his stay of the injunction to 5/31. E* did mention "the burdens resolving that motion might place on the Court's schedule", sounded like what I have been saying, the Court has no time nor resources to address the design around pre-approval issue, even though it took on that duty and even said it understood the needs of the parties to resolve this new design issue and the "potential ramifications". Of course E* put it in a very diplomatic way.


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## jacmyoung

E* reported a very big expense ($30.2M) for Q1 related to this case, I assume the several new design around options did cost some real money.


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## Curtis52

"The chief executive of satellite TV provider Dish Network says he's prepared to shut down millions of DVRs if a court sides with TiVo in a patent-infringement lawsuit.

Charlie Ergen told analysts Monday that "the only thing we can control is to shut down boxes, so we have to, obviously, if we were to lose in the court procedures."

TiVo sued Dish in 2004 for infringement of its real-time TV pausing and rewinding features. A three-judge federal appeals panel in Washington sided with TiVo in March. Dish asked for the full appeals court to review the case, but that's unlikely to be granted.

Sanford Bernstein analyst Craig Moffett says about 7.3 million DVRs could be affected. He estimates the cost of a shutdown and replacement at $3 billion."

link


----------



## jacmyoung

Curtis52 said:


> "The chief executive of satellite TV provider Dish Network says he's prepared to shut down millions of DVRs if a court sides with TiVo in a patent-infringement lawsuit.
> 
> Charlie Ergen told analysts Monday that "the only thing we can control is to shut down boxes, so we have to, obviously, if we were to lose in the court procedures."
> 
> TiVo sued Dish in 2004 for infringement of its real-time TV pausing and rewinding features. A three-judge federal appeals panel in Washington sided with TiVo in March. Dish asked for the full appeals court to review the case, but that's unlikely to be granted.
> 
> Sanford Bernstein analyst Craig Moffett says about 7.3 million DVRs could be affected. He estimates the cost of a shutdown and replacement at $3 billion."
> 
> link


Are you as happy as I am that we'll go all the way?


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## Curtis52

O R D E R 
Before the Court is Defendants’ Emergency Motion for Expedited Resolution of Echostar’s Motion for Pre-Approval of Proposed New Design Around. Dkt. Nos. 1025 and 1024, respectively. 

Also before the Court are Plaintiff’s Response, Defendants’ Reply, and 
Plaintiff’s Sur-reply. Dkt. Nos. 1029, 1030, and 1031, respectively. 
The Court previously stayed the injunction until midnight April 30, 2010. See Order of 3/25/2010, Dkt. No. 1034. The Court discussed that its resources were fully engaged and that it did not have the time and resources to adequately address the merits of Defendant’s second designaround. Id. 

On May 7, 2010, Defendants moved to extend the stay period until May 31, 2010. Dkt. No. 1040. The Court understands both the Plaintiff’s opposition to this current extension as well 
as the parties’ needs for resolution on this matter. The Court’s resources, however, remain fully engaged, and it similarly cannot address the designaround. 
Therefore, Defendants’ Motion, Dkt. No. 1040, is hereby GRANTED AS MODIFIED, and the Court hereby STAYS the injunction until midnight June 4, 2010. 
IT IS SO ORDERED.


----------



## tivonomo

jacmyoung said:


> Now this is getting a bit ridiculous. TiVo asked, and Judge Folsom agreed to add a "pre-approval" provision in the amended injunction, supposedly the court would take on the responsibility to decide the merits of any E*'s future actions aimed to avoid infringement, before the actions are to take place.
> 
> E* requested the review of such actions long ago. It was understandable when the court was booked solid at the end of March and the good part of April, pushed the review back to the end of April. But now a week after 4/30, still nothing?
> 
> Knowing that Charlie has used every loophole he could possibly find in our legal system to fight this lawsuit, why in the world would the court give him another good reason to argue that the court is responsible for the continued infringement or the delay in avoiding infringement? Who is now liable for the supposed continued infringement? Isn't this a good example of why there should never be a "pre-approval" provision in an injunction? If the court has no resources to handle it, don't subscribe to it.


It looks like Folsom extended the stay June 4th for the same reasons as before... Folsom basically has no time for a party who has been found in contempt of court. This isn't going to end pretty for Dish.


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## jacmyoung

tivonomo said:


> It looks like Folsom extended the stay June 4th for the same reasons as before... Folsom basically has no time for a party who has been found in contempt of court. This isn't going to end pretty for Dish.


E* asked for 5/31, Judge Folsom gave it 6/4, it is certainly prettier than E* had asked for


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## tivonomo

jacmyoung said:


> E* asked for 5/31, Judge Folsom gave it 6/4, it is certainly prettier than E* had asked for


No it is not. Folsom won't even consider E*'s request at the moment.

And leave it up to E*'s brilliant legal team to request 5/31 which happens to be Memorial Day. :lol:


----------



## jacmyoung

tivonomo said:


> No it is not. Folsom won't even consider E*'s request at the moment.
> 
> And leave it up to E*'s brilliant legal team to request 5/31 which happens to be Memorial Day. :lol:


Just in case you are actually serious, Judge Folsom will continue to stay his injunction as he continues to have no time to decide on the new design issue, and since Judge Folsom is one of the busiest Judges and is booked solid 20 months from now...


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## James Long

tivonomo said:


> No it is not. Folsom won't even consider E*'s request at the moment.


As long as he keeps extending the stay DISH wins.

DISH has no worries until the hearing on whether or not the potential workaround actually doesn't infringe. Judge Folsom's delays just allow the status quo to continue.


----------



## tivonomo

jacmyoung said:


> Just in case you are actually serious, Judge Folsom will continue to stay his injunction as he continues to have no time to decide on the new design issue, and since Judge Folsom is one of the busiest Judges and is booked solid 20 months from now...


Of course I am serious. Remember that Folsom is doing this routine instead of simply granting E*'s original request which was to stay this until 7 days after the CAFC mandate is issued.

Instead of entertaining that simple request, Folsom is intentionally not even considering the briefs. That is hardly good news for Dish. Of course, that should not be a surprise because Folsom found Dish in contempt of his court. A highly serious charge.


----------



## tivonomo

James Long said:


> As long as he keeps extending the stay DISH wins.
> 
> DISH has no worries until the hearing on whether or not the potential workaround actually doesn't infringe. Judge Folsom's delays just allow the status quo to continue.


Dish wins? That's incredibly optimistic. His stay is meaningless until a CAFC mandate is issued. And if Dish doesn't comply with the disablement clause of the injunction, they will be looking at enhanced sanctions including the stay period.


----------



## James Long

DISH is looking at $3 billion in losses if they disable the DVRs in question.
As long as the receivers are not disabled DISH doesn't have to pay that.

Eventually DISH will pay Tivo for the time since the last time DISH paid and whenever the line is drawn this time. But that day is on hold too.

Wouldn't Tivo prefer that there was no stay?


----------



## tivonomo

James Long said:


> DISH is looking at $3 billion in losses if they disable the DVRs in question.
> As long as the receivers are not disabled DISH doesn't have to pay that.


The stay in Texas has no bearing on the fact that all Infringing Products must be disabled unless the CAFC overturns the panel ruling through the en banc process.

The injunction does not allow for a software download to the infringing boxes. E*'s request would only impact replacement boxes if the CAFC opinion is upheld. And in that case E* is still losing $3 billion.



James Long said:


> Wouldn't Tivo prefer that there was no stay?


Of course that would be nice. But let's say the CAFC ruled in TiVo's favor tomorrow. I wouldn't be surprised if Judge Folsom found a little time to enforce the injunction and remove the stay if Dish doesn't settle first.


----------



## jacmyoung

tivonomo said:


> Dish wins? That's incredibly optimistic. His stay is meaningless until a CAFC mandate is issued. And if Dish doesn't comply with the disablement clause of the injunction, they will be looking at enhanced sanctions including the stay period.


If his stay is meaningless, as you assert, then it would have made no sense for E* to ask for it, for TiVo to oppose it, and for Judge Folsom to grant it. No one pays lawyers big money for meaningless things.

If one focuses on the issue here, the reason, and the only reason Judge Folsom agreed to stay his injunction, is because he has no time to make a decision on it. It has nothing to do with the CAFC, or the USPTO. Although any positive ruling coming out of CAFC or USPTO will help E*, but this pre-approval issue stands on its own.

So long as Judge Folsom does not have time to make a decision on it, E* cannot be in contempt, because he will continue to stay his injunction as long as he does not have time to make a decision on it.


----------



## jacmyoung

tivonomo said:


> ...But let's say the CAFC ruled in TiVo's favor tomorrow. I wouldn't be surprised if Judge Folsom found a little time to enforce the injunction and remove the stay if Dish doesn't settle first.


If Judge Folsom does that, he will have clearly contradicted himself when he said he continued to not have time to make a decision, that will be a clear ground for appeal. When he said his court was fully engaged in other cases therefore he had no time to deal with this issue, the record is clear on that, he cannot suddenly say oops now I have time, in fact I only need this little time to make a decision, if he could, he should have done so already, because as he said himself, he fully understood the needs of both parties to resolve this issue.

Every word of his counts, and can be used if necessary. E*'s such stay requests are to get Judge Folsom to say as much as possible in E*'s favor, so far Judge Folsom has granted E*s wish. This much is fact, not even an opinion.


----------



## Curtis52

"In a conference call with the Street today to discuss March quarter results, Dish CEO Charlie Ergen sounded surprisingly conciliatory; it makes you wonder if they will soon agree to pay a royalty to TiVo to settle the litigation.

"We've always said that it seems like we should be working together with TiVo," he said on the call, according to a preliminary transcript from Thomson StreetEvents. "We certainly as we got to know them we have a lot of respect for what they've done. They have done very well in the litigation process with us and this has always been a case really about an honest disagreement on how our DVRs work. There's never been anything personal about it."

Ergen asserted on the call that a settlement is in the best interest of both companies. "We are joined at the hip with TiVo in a sense that&#8230;we booked $30 million for one quarter [in potential royalties to TiVo] so that's over $100 million just for the year on average in licensing fees for TiVo which is materially more than they get with the rest of the entire industry," he said. "So we are joined at the hip in the sense that if we don't get a deal done, those fees will go away for them and obviously we'll lose customers and so it reminds me a lot of our programming negotiation, where you both need each other."

Added Ergen: "I don't think you should assume that we will get a deal done," but adding "I don't think you should assume that the courts are going to rule in our favor, but there is a logic to us working together."

link

The article went on to say that a Collins Stewart analyst said today that a deal could be announced in a week and that Dish would pay $3.50 to $4.00 per month for a license.


----------



## jacmyoung

Curtis52 said:


> "In a conference call with the Street today to discuss March quarter results, Dish CEO Charlie Ergen sounded surprisingly conciliatory; it makes you wonder if they will soon agree to pay a royalty to TiVo to settle the litigation.
> 
> "We've always said that it seems like we should be working together with TiVo," he said on the call, according to a preliminary transcript from Thomson StreetEvents. "We certainly as we got to know them we have a lot of respect for what they've done. They have done very well in the litigation process with us and this has always been a case really about an honest disagreement on how our DVRs work. There's never been anything personal about it."
> 
> Ergen asserted on the call that a settlement is in the best interest of both companies. "We are joined at the hip with TiVo in a sense that&#8230;we booked $30 million for one quarter [in potential royalties to TiVo] so that's over $100 million just for the year on average in licensing fees for TiVo which is materially more than they get with the rest of the entire industry," he said. "So we are joined at the hip in the sense that if we don't get a deal done, those fees will go away for them and obviously we'll lose customers and so it reminds me a lot of our programming negotiation, where you both need each other."
> 
> Added Ergen: "I don't think you should assume that we will get a deal done," but adding "I don't think you should assume that the courts are going to rule in our favor, but there is a logic to us working together."
> 
> link
> 
> The article went on to say that a Collins Stewart analyst said today that a deal could be announced in a week and that Dish would pay $3.50 to $4.00 per month for a license.


Here is where the analyst had lost his logic.

Charlie is saying, look, if TiVo you refuse to do a deal with us, you will potentially lose as much as $100M a year revenue, which means the most he would pay would be $100M a year to TiVo.

Now if you use the analyst's number, even if we just assume the fee only applies to the 6 million named DVRs, at $3.50 we are talking $252M year. Of course in all likelihood, any deal will cover all of E*'s DVRs, so the analyst's number will result in an annual fee of maybe five times higher than the max Charlie is saying.

If we assume Charlie is willing to pay a max of $100M a year to cover all his DVRs, then assume there are 15M total DVRs (a little more than double of the 8 old DVRs), that is about $0.50 per box per month he is willing to pay. To me he is basically saying a lump sum deal, not per box rate anyway, i.e. a lump sum of up to $100M a year, with the benefit of using some of the TiVo IPs or even the name.

To me that will be a very good deal for both "working together". Of course he also made it clear that the investors shall not assume a deal will be made. But at least this is the first time he actually hinted that he is willing to do a deal, and at how much maximum, what he did not say is what he wanted for return, that can also make a big difference. His "working together" comment seems to suggest he wants a lot of benefits in return from TiVo too, not merely writing TiVo a check, and of course TiVo may benefit from E*'s IPs too such as the Sling.


----------



## jacmyoung

My bad, a simple math error, should have said $120M because $30M X 4 = $120M, not $100M. Just took what Charlie said about the $100M but reading carefully he said more than $100M.


----------



## Shades228

It's obvious TiVo would prefer the stay to have been denied to force Charlie's hand. With that said the stay could theoretically work in favor for them depending on the amount Fulsom decides to use for damages. If Fulsom uses a higher amount than Charlie ends up negotiating, if they do, for an agreement with TiVo then they win out.

The bottom line is though the longer the DVR's can stay turned on the better it is for Dish.


----------



## jacmyoung

Shades228 said:


> It's obvious TiVo would prefer the stay to have been denied to force Charlie's hand. With that said the stay could theoretically work in favor for them depending on the amount Fulsom decides to use for damages. If Fulsom uses a higher amount than Charlie ends up negotiating, if they do, for an agreement with TiVo then they win out.
> 
> The bottom line is though the longer the DVR's can stay turned on the better it is for Dish.


As strange as this is, I want to repeat, in this particular case, as long as Judge Folsom agrees to stay his own injunction, he should not be able to even assess any damages for the stay period, much less any sanctions, even if in the end he still finds the 8 named DVRs continue to infringe under the new new design.

I have said this, if in the end the court finds new design continue to infringe therefore denies the implementation, the court cannot blame E* for the infringement. E* could have known this long before only if the court had told them sooner, and E* could have taken corrective action to avoid damages, but E* cannot do so because the court insists E* gets pre-approval first, and the court now has no time to do the pre-approval review.

This much is even mentioned by Charlie in his conference call.


----------



## Herdfan

jacmyoung said:


> with the benefit of using some of the TiVo IPs or even the name.


Back when all this started, if Charlie had jumped on board with TiVo, he would have seen a nice bump in sub growth. D*'s DVR's were junk as a result of dropping TiVo and going with NDS. Had he inked a deal to provide TiVo based DVR's, he might have ended up with a nice chunk of D*'s TiVo fanboy subs.


----------



## tivonomo

jacmyoung said:


> If his stay is meaningless, as you assert, then it would have made no sense for E* to ask for it, for TiVo to oppose it, and for Judge Folsom to grant it. No one pays lawyers big money for meaningless things.


Well, Dish wants the stay because they claim to have workaround technology. It is merely a bargaining chip for E* that is pretty weak unless en banc is granted. The disablement clause as interpreted by Folsom and validated by the CAFC panel does not allow for a workaround on the existing boxes. Therefore Folsom's stay doesn't really matter.


----------



## tivonomo

jacmyoung said:


> Here is where the analyst had lost his logic.


I don't think you realize that Charlie is posturing like any CEO in a tough negotiation. If the en banc is denied, Charlie loses significant leverage. That is where your analysis goes wrong. It will definitely involve higher licensing fees than imposed by the courts this far.


----------



## jacmyoung

Herdfan said:


> Back when all this started, if Charlie had jumped on board with TiVo, he would have seen a nice bump in sub growth. D*'s DVR's were junk as a result of dropping TiVo and going with NDS. Had he inked a deal to provide TiVo based DVR's, he might have ended up with a nice chunk of D*'s TiVo fanboy subs.


Hindsight is always 20/20.

Way back then had Charlie not stopped selling his BUD from the back of his van, he would not have provided us all this legal entertainment for all these years


----------



## James Long

tivonomo said:


> The disablement clause as interpreted by Folsom and validated by the CAFC panel does not allow for a workaround on the existing boxes. Therefore Folsom's stay doesn't really matter.


If the stay doesn't matter why does Folsom keep extending it?

You're proceeding from the opinion that what is in the field can never become non-infringing. The court's continuing stay ALLOWS those receivers to continue to operate regardless of their infringing status. If there was no hope for those receivers why won't the court just pull the plug?


----------



## Curtis52

Dish can end infringement today if they want to. No one is forcing them to infringe. They seem to prefer sanctions.

Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1003 n.12 (Fed. Cir. 1986) 
("One who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected.")​


----------



## jacmyoung

tivonomo said:


> Well, Dish wants the stay because they claim to have workaround technology. It is merely a bargaining chip for E* that is pretty weak unless en banc is granted. The disablement clause as interpreted by Folsom and validated by the CAFC panel does not allow for a workaround on the existing boxes. Therefore Folsom's stay doesn't really matter.


How many times do I have to say this, disablement itself is a design around because the boxes are still allowed to be used as receivers. Any design around must be approved first.

How do you know one of E*'s new options does not involve some disablement of the DVR fucntions? Did you have any inside info on them? We don't. But the court simply has no time to review, and therefore E* cannot implement.

I think this will answer Curtis' question too.

BTW, even TiVo is not saying the new options still violate the injunction, only that TiVo wants discoveries to know more for sure, but again TiVo cannot get it because the court has no time to deal with it.


----------



## tivonomo

James Long said:


> If the stay doesn't matter why does Folsom keep extending it?
> 
> You're proceeding from the opinion that what is in the field can never become non-infringing. The court's continuing stay ALLOWS those receivers to continue to operate regardless of their infringing status. If there was no hope for those receivers why won't the court just pull the plug?


The CAFC is in the process of pulling the plug. En banc denial upholds Folsom's opinion that no workaround to allow DVR functionality is allowed on the Infringing products.

The stay doesn't matter because the CAFC has also issued a stay that overrides any lower court action while it is in place. Folsom is ignoring the case because he is busy and realizes that what he may do could be unnecessary pending the CAFC mandate to be issued.


----------



## tivonomo

jacmyoung said:


> How many times do I have to say this, disablement itself is a design around because the boxes are still allowed to be used as receivers. Any design around must be approved first.


I would hope you never had to say that because it is wrong. Disablement doesn't need to be approved because Folsom already approved it in the original injunction proceedings.


----------



## James Long

tivonomo said:


> I would hope you never had to say that because it is wrong. Disablement doesn't need to be approved because Folsom already approved it in the original injunction proceedings.


Other than the grammatical errors there were technical errors in that original injunction. At the time disabling the hard drive (as instructed) would have bricked the receiver. As the intent of the injunction was to disable the infringing part of the receiver (the ability to record and play back audio and video) and NOT the entire receiver some compromise is needed between the injunction and reality.

In other words, what was "approved" in the original injunction cannot be followed. DISH must find some way of disabling the infringing part of the units without bricking the entire receiver. Something less than the letter of the injunction but within the injunction's intent.

(If Judge Folsom wanted the receivers bricked he would have ordered the entire receiver bricked instead of just the hard drive.)


----------



## nmetro

In this mornings Denver Post (Page 8B):

CEO say DISH won't pay fees to TiVo

Dish Network Corp. CEO Charlie Ergen said Monday that he's prepared to shut down the company's digital video recorders if a court sides with TiVo in a patent infringement case. The alternative is to pay TiVo licensing fees.

The rest of the article discusses quarterly results.

So, this is the spin as it is playing here in Colorado.


----------



## Tulsa1

More press on it:

http://www.washingtonpost.com/wp-dyn/content/article/2010/05/10/AR2010051000947.html?wpisrc=nl_tech


----------



## tivonomo

James Long said:


> Other than the grammatical errors there were technical errors in that original injunction.......
> 
> (If Judge Folsom wanted the receivers bricked he would have ordered the entire receiver bricked instead of just the hard drive.)


None of that matters. E* agreed to the terms of the original injunction and did not challenge the injunction on appeal.


----------



## James Long

tivonomo said:


> None of that matters. E* agreed to the terms of the original injunction and did not challenge the injunction on appeal.


See previous discussion on what an injunction can and cannot order.
(Most of it is in a previous thread.)


----------



## tivonomo

James Long said:


> See previous discussion on what an injunction can and cannot order.
> (Most of it is in a previous thread.)


It is not relevant. The injunction is the law of the case. And 2 of 3 CAFC judges denied Dish's arguments which I assume were in-line with the thread you reference


----------



## Lake Lover

Charlie now knows that the time for bravado is past. He has been pushing Dish along a treacherous path thru a dark forest where unknown monsters lurk, towards a steep precipice at its end, where a collapse would leave little prospect of recovery.

It is not rational for Charlie to rationalize continuing a loosing process which may lead to disabling millions of boxes, triggering potentially devastating loses of revenue, unhappy subscribers, and unknown court assessed damages. There is no rationale to Tommy leaving his company open to loosing its hard won court victories to date. Tommy and Charlie should settle, must settle and I think will settle soon, hopefully with face saving for both sides.

I think the good Judge is giving the parties precious time to negotiate a truce before he rules.

If they settle before the judge rules, the removal of the overhanging uncertainty will be a terrific relief with immediate positive implications for the customers and especially the shareholders of BOTH companies.


----------



## GravelChan

Isn't the pause/rewind ability the infringing part. Could not dish just disable that and avoid the infringement? You could still record and play back after it was all recorded... ????? Watch while recording but no fast forwarding or skipping ahead/back or pausing while recording..... Be like a VCR. Or is using a hard disk to record on part of the patent?


----------



## Curtis52

GravelChan said:


> Isn't the pause/rewind ability the infringing part. Could not dish just disable that and avoid the infringement? You could still record and play back after it was all recorded... ????? Watch while recording but no fast forwarding or skipping ahead/back or pausing while recording..... Be like a VCR. Or is using a hard disk to record on part of the patent?


The infringed claim doesn't mention pausing and rewinding. If Dish can't bypass the hard drive with the receiver's signal it looks like they are SOL.


----------



## James Long

GravelChan said:


> Or is using a hard disk to record on part of the patent?


Not using the hard drive is part of the injunction.

Most of the debate over whether or not DISH's firmware infringes has come down to parsing and indexing the content. DISH tried to remove the indexing (and any long term regular DVR user can attest to the change from precise 10 and 30 second jumps to sloppy guesses about how far ahead and back in the data 10 seconds or 30 seconds is). But the court ruled that the parsing was still there. Unfortunate as parsing is a receiver function (even a 301 parses).

Since the injunction specified disabling the hard drive that should be enough - IF any receivers are disabled. As noted, there is a question of whether or not the receivers will function without passing the data through the hard drive.

The patent itself is in question as well ... it has been a long road and we're not at the end yet.


----------



## GravelChan

Curtis52 said:


> The infringed claim doesn't mention pausing and rewinding. If Dish can't bypass the hard drive with the receiver's signal it looks like they are SOL.


Hummm, the Washington article mentioned in post 934 says that Tivo sued Dish for quote, "real-time TV pausing and rewinding features" 

I certainly don't know, just thinking out loud.


----------



## James Long

GravelChan said:


> Hummm, the Washington article mentioned in post 934 says that Tivo sued Dish for quote, "real-time TV pausing and rewinding features"
> 
> I certainly don't know, just thinking out loud.


Tivo did not win on all of their claims. What stuck was the "software" parsing. There are a couple of "hardware" claims that were remanded and remain unresolved at last check.

It would be more accurate to say Tivo sued DISH over the DVR feature on their receivers.


----------



## jacmyoung

James Long said:


> Not using the hard drive is part of the injunction...


To be precise, the hard drive already inside the Infringing Product. This statement has two parts,

1)	The product has to be Infringing Product, if not, the injunction does not apply. E* used this argument but failed so far, however Judge Rader is in full agreement with E*, so we will have to see if the en banc panel will review such statement or not.
2)	The hard drive must be the one already in the DVR, the injunction does not cover any hard drive as an external attachment. We know E* has worked on external hard drives for years and has many receivers with external drives. The question is will E* try to go this route for the 8 named DVRs? The answer seems to be a "no", Charlie said he would junk those DVRs if he has to, and replace them with newer DVRs. He could easily replace them with those 211s (?) with external HD support, that can easily get around the current injunction.

Another thing needed to be pointed out is, despite the seemingly "conciliatory" tone from Charlie, if one reads between the lines, what he offered may not be what TiVo had even dreamed of.

He made a point of him paying $120M a year to TiVo, much more than TiVo is currently receiving from the whole industry. To me such statement, in addition to the "working together", implies that Charlie might be seeking some kind of exclusive deal with TiVo, i.e. work with me, not the others.

I know the above may shock some of you TiVo folks, but before you go nuts, understand it is only my speculation based on what Charlie had said, I have no facts to prove it, it is only a speculation, you do not have to agree


----------



## CuriousMark

Herdfan said:


> Back when all this started, if Charlie had jumped on board with TiVo, he would have seen a nice bump in sub growth. D*'s DVR's were junk as a result of dropping TiVo and going with NDS. Had he inked a deal to provide TiVo based DVR's, he might have ended up with a nice chunk of D*'s TiVo fanboy subs.


True, Dish's unwillingness to work with TiVo partially influenced my decision to go with DirecTV instead of Dish when I dropped cable somewhere back in that time frame.


----------



## phrelin

This article Dish Network faces DVR shutdown, 1Q profit falls was linked in the Q1 financials thread this morning without any quotes, but I have to include the following here:


> Dish CEO Charlie Ergen said Monday that he's prepared to shut down the DVRs if a court sides with TiVo in a patent-infringement case. The alternative is to pay TiVo, a pioneer in DVR technology, licensing fees.
> 
> "The only thing we can control is to shut down boxes, so we have to, obviously, if we were to lose in the court procedures," he told analysts during a conference call on the company's earnings. "We're prepared to do that. That obviously will have a material negative effect on our business."


There is a whole speculative thing by some analyst named Craig Moffet that says "7.3 million DVRs could be affected." So it appears that he thinks either (1) half of Dish customers have 508's or similar vintage DVRs or (2) the court is close to ordering the shutdown of the 722k and 922.

You really have to acknowledge Charlie's "fight to the death" attitude, however recklessly he expresses it.

And you have to acknowledge just how reckless or dumb financial analysts are - oh, that's right, we already learned that awhile back.


----------



## James Long

phrelin said:


> There is a whole speculative thing by some analyst named Craig Moffet that says "7.3 million DVRs could be affected." So it appears that he thinks either (1) half of Dish customers have 508's or similar vintage DVRs or (2) the court is close to ordering the shutdown of the 722k and 922.


Or 3.8 million customers have two affected DVRs.

The statements of DISH should be given more weight than those of an analyst. With millions of customers not possessing a DVR and an unstated number possessing newer ViP DVRs, DISH has acknowledged billions in losses and millions of lost customers if the DVRs are shut off ... but not half of their customer base.


----------



## jacmyoung

James Long said:


> Or 3.8 million customers have two affected DVRs.
> 
> The statements of DISH should be given more weight than those of an analyst. With millions of customers not possessing a DVR and an unstated number possessing newer ViP DVRs, DISH has acknowledged billions in losses and millions of lost customers if the DVRs are shut off ... but not half of their customer base.


Of course such statements are pretty much BS, even Tivonomo knows that


----------



## tivonomo

jacmyoung said:


> Of course such statements are pretty much BS, even Tivonomo knows that


Any CEO has an incentive to paint a rosy picture. Tom Rogers of TiVo is famous for saying imminent. If you took Tom Rogers word on every imminent launch with DTV, Comcast, Cox, etc you would expect Tivo to have doubled its subscribers by now.

Ergen has a huge incentive to paint the rosy picture here. He has the most to lose financially on any bad news that comes Dish's way.



James Long said:


> The statements of DISH should be given more weight than those of an analyst.


Continuing the analysis of incentives, analysts have more of an interest in getting their analysis right. I would give their analysis more weight in most cases. Analysts are often wrong but CEO's are still wrong more often.


----------



## jacmyoung

tivonomo said:


> ...Ergen has a huge incentive to paint the rosy picture here. ...


How can you possibly say what Charlie/E* had said in that conference call and 10K with respect to the TiVo case were painting "rosy pictures"? They are talking about the possibility of shutting off all the DVRs, billions of replacement cost, loss of customers.

Is it just me or is my English bad that the above is not a rosy picture? Now of course you are right about Rogers.


----------



## blocker00

So does anyone know when we will know the end. I read somewhere that DNW got a stay until June 4?


----------



## phrelin

tivonomo said:


> Ergen has a huge incentive to paint the rosy picture here. He has the most to lose financially on any bad news that comes Dish's way.





> "The only thing we can control is to shut down boxes, so we have to, obviously, if we were to lose in the court procedures," he told analysts....


When I called this reckless, I wasn't thinking painting rosy pictures. The fact that the possibility of shutting down DVRs became the headline is reflective of just how reckless a CEO Charlie is discussing this subject with his usual aggressive bombast. It's only because most everyone knows Charlie's attitude that he can get away with it.


----------



## Albie

blocker00 said:


> So does anyone know when we will know the end. I read somewhere that DNW got a stay until June 4?


Simple answer, no.


----------



## Kheldar

Albie said:


> Simple answer, no.


Careful, there was 2 questions there.
No, we don't know when this will end.
Yes, the stay has been extended until June 4, 2010.


----------



## Matt9876

I'm a lifetime TiVo member with paper work to prove that fact $250 fee,If anyone turns off my Dishnetwork VIP DVR someone out there is going to get an ear full from me and possibly a class action suit from a lawyer.

Bet no one has even considered a second wave issue like this.


----------



## Shades228

Matt9876 said:


> I'm a lifetime TiVo member with paper work to prove that fact $250 fee,If anyone turns off my Dishnetwork VIP DVR someone out there is going to get an ear full from me and possibly a class action suit from a lawyer.
> 
> Bet no one has even considered a second wave issue like this.


That TiVo lifetime came when you purchased your dish dvr?


----------



## Egz

Should Dish decide to go with the cut on the DVR, would this allow users to cancel without an ETF? I'm starting to mentally design a HTPC to replace this unit should they shut off DVR.


----------



## Matt9876

Shades228 said:


> That TiVo lifetime came when you purchased your dish dvr?


No, I purchased it back in 1996 but a judge has already affirmed in another case lifetime means lifetime. No exceptions.:grin:


----------



## acs236

I'm confused. I didn't think there were Tivo-Dish devices. If you're using a Tivo device, then the shutoff wouldn't affect you. But I don't see how a lifetime Tivo license would give you a license to use the infringing Dish Network DVR.


----------



## jacmyoung

phrelin said:


> When I called this reckless, I wasn't thinking painting rosy pictures. The fact that the possibility of shutting down DVRs became the headline is reflective of just how reckless a CEO Charlie is discussing this subject with his usual aggressive bombast. It's only because most everyone knows Charlie's attitude that he can get away with it.


That I agree 100%. It is interesting to note that how one person's personality can influence the whole crowd or even the entire community. Usually the CEOs paint rosy pictures, so people are accustomed to good news, this is not only true for TiVo but most other companies including DirecTV, which I am a customer BTW. Any negative comments can get those supporters riled up and you can face extinction.

But because Charlie has no problem painting the worst pictures, at least as far as this TiVo case is concerned, we here do not have such issue. You can paint as bad a picture as you possibly can about E* with regard to this TiVo case, you will still not be able to match the worst picture Charlie has painted for E* himself

I think that is why a lot of people are confused, including the TiVo poster above, and including those big shot analysts, they are just not used to this kind of things. There are no statistics models, guidelines, or experiences to go by trying to figure out what is going on here. In fact even the courts had found themselves not knowing exactly what is the best way to go on this one. The appeals court kept staying the injunction, the merits panel majority affirmed Judge Folsom's decision but forgot to say whether they were going to issue a mandate or not, and when TiVo motioned the appeals court to issue the mandate immediately, it was denied the same day TiVo filed its response, probably by the court clerk for all that I can gather.

Judge Folsom, after presiding over this case for 6 years, considered by our judge in the Delaware court, and our two judges on the appeals court merits panel, the most experienced and well vested judge for this TiVo patent, yes, even Judge Folsom, has shown signs of wear and tear. He now insists that he has no time, and will continue to stay his own injunction so long as he continues to have no time to deal with it.

Are you not just as fascinated as I am?


----------



## phrelin

jacmyoung said:


> Are you not just as fascinated as I am?


Several times I have been surprised that the court has not simply said to Charlie "shut the listed units DVR function off today or there'll be Federal Marshal's at your front door tomorrow."

But it seems Charlie & Co. have figured out at every step how to delay. And right now I take his statement in the conference call as a continued negotiations with TiVo for whenever the court appears it will actually do something. (I can't find enough inventory in the quarterly to replace several million DVRs, but they may be there.)


----------



## Matt9876

acs236 said:


> I'm confused. I didn't think there were Tivo-Dish devices. If you're using a Tivo device, then the shutoff wouldn't affect you. But I don't see how a lifetime Tivo license would give you a license to use the infringing Dish Network DVR.


You are correct and they would most likely turn me me off just like everyone else but I have a feeling a lawyer might find some merit to proceed in such a case,lets just face the fact this is a real mess and Dish should just settle the best way they can and stop threatening it's customers with pulling the plug on the hard drives.


----------



## scooper

I don't think Tivo was prepared to deal with someone as obstinate as Charlie - They thought it would be a quick one and done in that east Texas kangaroo court and Dish would fold (i.e. sign license agreement) - little did they realize....


----------



## dfd

jacmyoung said:


> To be precise, the hard drive already inside the Infringing Product. This statement has two parts,
> 
> 1)	The product has to be Infringing Product, if not, the injunction does not apply. E* used this argument but failed so far, however Judge Rader is in full agreement with E*, so we will have to see if the en banc panel will review such statement or not.
> 2)	The hard drive must be the one already in the DVR, the injunction does not cover any hard drive as an external attachment. We know E* has worked on external hard drives for years and has many receivers with external drives. The question is will E* try to go this route for the 8 named DVRs? The answer seems to be a "no", Charlie said he would junk those DVRs if he has to, and replace them with newer DVRs. He could easily replace them with those 211s (?) with external HD support, that can easily get around the current injunction.
> 
> Another thing needed to be pointed out is, despite the seemingly "conciliatory" tone from Charlie, if one reads between the lines, what he offered may not be what TiVo had even dreamed of.
> 
> He made a point of him paying $120M a year to TiVo, much more than TiVo is currently receiving from the whole industry. To me such statement, in addition to the "working together", implies that Charlie might be seeking some kind of exclusive deal with TiVo, i.e. work with me, not the others.
> 
> I know the above may shock some of you TiVo folks, but before you go nuts, understand it is only my speculation based on what Charlie had said, I have no facts to prove it, it is only a speculation, you do not have to agree


To be precise, please explain where it says in the injunction that only the hard drive in the Infringing Product is subject to the injunction.

How about where E* said it?

AFAIK you are the only one that subscribes to that.


----------



## Voyager6

jacmyoung said:


> Judge Folsom, after presiding over this case for 6 years, considered by our judge in the Delaware court, and our two judges on the appeals court merits panel, the most experienced and well vested judge for this TiVo patent, yes, even Judge Folsom, has shown signs of wear and tear. He now insists that he has no time, and will continue to stay his own injunction so long as he continues to have no time to deal with it.
> 
> Are you not just as fascinated as I am?


Think about this scenario. Judge Folsom has made it pretty clear that he wants the infringing DVR's shut down (even if they no longer infringe - his words). He even insists that E* clear any proposed work-arounds through him first. While his injunction is stayed by the CAFC, E* presents two work-arounds to Folsom. Folsom claims not to have the time to review the work-arounds. But what if Folsom has already reviewed the new work-arounds and sees that they are clearly "colorably different"? Does he approve the new software and let E* implement it? Wouldn't this invalidate his injunction? TIVO would naturally object. This could start the trial process all over again. What's a Judge to do? Stall, and hope that the CAFC rules against E*'s en banc hearing request.


----------



## Curtis52

Voyager6 said:


> What's a Judge to do? Stall, and hope that the CAFC rules against E*'s en banc hearing request.


Granting more stays seems to be an odd way to stall. Folsom is under no obligation to do anything.


----------



## Voyager6

Curtis52 said:


> Granting more stays seems to be an odd way to stall. Folsom is under no obligation to do anything.


So you are saying that Folsom does not have to review the new software, that he insisted E* submit to him, before E* implements it?


----------



## Curtis52

Voyager6 said:


> So you are saying that Folsom does not have to review the new software, that he insisted E* submit to him, before E* implements it?


Correct, the obligation is on Dish to seek approval. He has no obligation to provide it and certainly not as a top priority.


----------



## Voyager6

Curtis52 said:


> Correct, the obligation is on Dish to seek approval. He has no obligation to provide it and certainly not as a top priority.


Oh, so he can stall any new work-arounds if he chooses to.


----------



## scooper

Voyager6 said:


> Think about this scenario. Judge Folsom has made it pretty clear that he wants the infringing DVR's shut down (even if they no longer infringe - his words). He even insists that E* clear any proposed work-arounds through him first.


Then Judge Folsom is the wrong judge to be sitting here - his first priority should be to ensure that Dish/Echostar is no longer infringing - whether that is thorough disabling the DVR functions or using a different set of noninfringing DVR functions.



Voyager6 said:


> While his injunction is stayed by the CAFC, E* presents two work-arounds to Folsom. Folsom claims not to have the time to review the work-arounds. But what if Folsom has already reviewed the new work-arounds and sees that they are clearly "colorably different"? Does he approve the new software and let E* implement it? Wouldn't this invalidate his injunction? TIVO would naturally object. This could start the trial process all over again. What's a Judge to do? Stall, and hope that the CAFC rules against E*'s en banc hearing request.


Anybody taking odds about a new trial happening if Echostar has found a "non-infringing" method ? It would surprise me greatly if Tivo doesn't open a new case on the different method.


----------



## scooper

Voyager6 said:


> Oh, so he can stall any new work-arounds if he chooses to.


But if he doesn't approve disapprove anything - he can't penalize either.


----------



## Voyager6

scooper said:


> Then Judge Folsom is the wrong judge to be sitting here - his first priority should be to ensure that Dish/Echostar is no longer infringing - whether that is thorough disabling the DVR functions or using a different set of noninfringing DVR functions..


Judge Rader on the CAFC agreed in his dissenting opinion.



scooper said:


> Anybody taking odds about a new trial happening if Echostar has found a "non-infringing" method ? It would surprise me greatly if Tivo doesn't open a new case on the different method.


I don't think that TIVO could afford another trial. They are already suing AT&T and Verizon. Microsoft has joined in against TIVO. The legal bills are really mounting.


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## tivonomo

Voyager6 said:


> I don't think that TIVO could afford another trial. They are already suing AT&T and Verizon. Microsoft has joined in against TIVO. The legal bills are really mounting.


Tivo stands to get at least $500 million from Dish if en banc is denied. I think TiVo can now afford to sue just about anyone they want.


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## dfd

Voyager6 said:


> Judge Rader on the CAFC agreed in his dissenting opinion.


Horseshoes and hand grenades.


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## jacmyoung

phrelin said:


> ... (I can't find enough inventory in the quarterly to replace several million DVRs, but they may be there.)


Which is why I said most of what the worst pictures he painted are BS


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## jacmyoung

dfd said:


> To be precise, please explain where it says in the injunction that only the hard drive in the Infringing Product is subject to the injunction.
> 
> How about where E* said it?
> 
> AFAIK you are the only one that subscribes to that.


Everything said in that "disablement provision" was "of the Infringing Products", there is no exception. A hard drive later attached to the DVR will not be "of the Infringing Product" because it is an accessory, it did not even exist at the time the injunction was issued, therefore the injunction could not have possibly meant to address it.

I am the only one who had said many things before, later many of my arguments appeared in the court papers, either by the lawyers, or by Judge Rader, or by some of those law professors. Not because I know things, just that when you read the case law, you can pickup on things.

The lawyers, the judges and the professors, they are reading the same case law.


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## jacmyoung

Voyager6 said:


> Think about this scenario. Judge Folsom has made it pretty clear that he wants the infringing DVR's shut down (even if they no longer infringe - his words). He even insists that E* clear any proposed work-arounds through him first. While his injunction is stayed by the CAFC, E* presents two work-arounds to Folsom. Folsom claims not to have the time to review the work-arounds. But what if Folsom has already reviewed the new work-arounds and sees that they are clearly "colorably different"? Does he approve the new software and let E* implement it? Wouldn't this invalidate his injunction? TIVO would naturally object. This could start the trial process all over again. What's a Judge to do? Stall, and hope that the CAFC rules against E*'s en banc hearing request.


That is a great point I did not want to bring out, because I did not want to drive TiVo folks even more nuts

As incredible as it may sound, if Judge Folsom has the time to determine the merits of (his words not mine) the new E* options, and if he agrees with E*, he is obligated to approve them for implementation, and after that E* cannot be in violation of his injunction. That is not invalidating his injunction, rather to find that the injunction may no longer be necessary, because he will have decided that infringement no longer exists. TiVo can't even go after E* in a new trial on this issue anymore, because Judge Folsom will have already made the decision there is no longer infringement.

If as you speculated he had already made such decision, but he simply does not want to give E* more leverage, while I have serious doubt about this, I can see the logic in your theory. My bet is still that he simply does not want to deal with it anymore.


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## tivonomo

jacmyoung said:


> Everything said in that "disablement provision" was "of the Infringing Products", there is no exception.


You forgot the "not colorably different" part.



jacmyoung said:


> I am the only one who had said many things before, later many of my arguments appeared in the court papers, either by the lawyers, or by Judge Rader, or by some of those law professors. Not because I know things, just that when you read the case law, you can pickup on things.


 :nono2:


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## Jhon69

Matt9876 said:


> You are correct and they would most likely turn me me off just like everyone else but I have a feeling a lawyer might find some merit to proceed in such a case,lets just face the fact this is a real mess and Dish should just settle the best way they can and stop threatening it's customers with pulling the plug on the hard drives.


The only benefit I know of if you have Tivo Lifetime is if you have a DirecTV DVR.


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## Jhon69

Well Charlie can turn off my recording features on my 625 if it still infringes.I will then go down and purchase a DVD recorder/player....no DVR fee to Dish or Tivo....problem solved.


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## jacmyoung

Jhon69 said:


> The only benefit I know of if you have Tivo Lifetime is if you have a DirecTV DVR.


I think what he meant was he has a lifetime standalone TiVo DVR that is hooked up to a Dish receiver, and he thinks if the Dish receivers will be shut off, his TiVo DVR will too, obviously he is confused.

But here is the kicker, a lot was said by the TiVo fear mongers about what all this can do to confuse the DISH subs and scare the potential subs off, yet you see E*'s quarterly reports, they keep adding more and more new subs, their churn rate is now even less than DirecTV's. The latest is over 800K new subs added, with a net 237,000 new subs. It seems the worse pictures E* paints about this TiVo case, the more new subs it has, maybe that is why they keep painting worse and worse pictures


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## jacmyoung

Jhon69 said:


> Well Charlie can turn off my recording features on my 625 if it still infringes.I will then go down and purchase a DVD recorder/player....no DVR fee to Dish or Tivo....problem solved.


Don't forget to mail Charlie the receipt for reimbursement too


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## bnborg

Jhon69 said:


> Well Charlie can turn off my recording features on my 625 if it still infringes.I will then go down and purchase a DVD recorder/player....no DVR fee to Dish or Tivo....problem solved.


They even have DVD recorders with hard drives in them, that are also DVR's.


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## Matt9876

jacmyoung said:


> I think what he meant was he has a lifetime standalone TiVo DVR that is hooked up to a Dish receiver, and he thinks if the Dish receivers will be shut off, his TiVo DVR will too, obviously he is confused.


I'm not confused in 1996 I purchased a Sat-T60 DVR and LifeTime TiVo service and spent just over $1000,this was connected to DirecTV service,When the R-15 TiVo DVR was available I upgraded to the newer unit.

After DirecTV went to Ka band HD and MPEG4 I waited to see when the next generation of TiVo would be released, they never did and looks like another year minimum before anyone gets one,also when the HR (DirecTV brand DVR) was first released it was a joke compared to a TiVo unit.

As I could wait no longer and economic issues prevailed I switched to DishNetwork eastern arc service with a VIP DVR. I am very happy with the move and service,This proposed shutdown of DVR service upsets me greatly since I've paid my fair share to both sides in this court battle.

Correction:
Earl called me on this one,Lifetime TiVo and Sony Sat-T60 was purchased mid 2001,I've been a DirecTV customer since 1996 sorry for the mistake on the date.Matt


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## Jhon69

jacmyoung said:


> Don't forget to mail Charlie the receipt for reimbursement too


Not me,because I will own it.:grin:


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## Jhon69

bnborg said:


> They even have DVD recorders with hard drives in them, that are also DVR's.


Yea I know but I would research it because these hard drives don't last forever,now if the owner can replace it no problem it might be worth it.


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## Shades228

Matt9876 said:


> I'm not confused in 1996 I purchased a Sat-T60 DVR and LifeTime TiVo service and spent just over $1000,this was connected to DirecTV service,When the R-15 TiVo DVR was available I upgraded to the newer unit.
> 
> After DirecTV went to Ka band HD and MPEG4 I waited to see when the next generation of TiVo would be released, they never did and looks like another year minimum before anyone gets one,also when the HR (DirecTV brand DVR) was first released it was a joke compared to a TiVo unit.
> 
> As I could wait no longer and economic issues prevailed I switched to DishNetwork eastern arc service with a VIP DVR. I am very happy with the move and service,This proposed shutdown of DVR service upsets me greatly since I've paid my fair share to both sides in this court battle.


If you return to DirecTV it would be honored as it was purchased for a specific receiver or account. You're not using either anymore.


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## jacmyoung

Jhon69 said:


> Not me,because I will own it.:grin:


That is exactly my point, after you own it, send DISH the receipt for a reimbursement so you end up with a free DVD recorder, owned

This brings an interesting scenario, not that I think it will happen, but how much is a DVD recorder with a hard drive? I bet Charlie can buy such DVD recorders made in China for cheap, maybe $15 a piece in bulk, if the DISH DVR is ordered to be turned into a receiver, he then sends one of these DVD recorder so you will still be able to do DVR, with the benefit of a DVD player too so you can actually record on a DVD disk. Now how many of the DISH subs will complain about that?

What is TiVo going to do? Go after that Chinese company? If you think it is hard to fight Charlie in the US court, wait till you have to fight a Chinese company, you will first have to find it, if that company has no presence in the US, you can't even sue it for infringement, the US patent law does not extend beyond our own borders.


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## tivonomo

jacmyoung said:


> That is exactly my point, after you own it, send DISH the receipt for a reimbursement so you end up with a free DVD recorder, owned


Let me repeat. You forgot the "not colorably different" part. The patent does not require an internal hard drive. What you just proposed is not colorably different, a waste of money, and would rack up some serious contempt sanctions. And that would not be speculation.


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## jacmyoung

tivonomo said:


> Let me repeat. You forgot the "not colorably different" part. The patent does not require an internal hard drive. What you just proposed is not colorably different, a waste of money, and would rack up some serious contempt sanctions. And that would not be speculation.


Wait, even if after E* disables its DVR and turns it into a receiver, you still cannot hook it up with another DVR recorder? It would still violate the injunction?

You know the poster earlier is not the only guy who has a TiVo DVR hooked up to his DISH receiver, so what you are suggesting is that anyone who uses another DVR type device, such as a TiVo sub, to work with one of those DISH DVR turned receivers, will have to answer to Judge Folsom? A TiVo sub in violation of the TiVo injunction?

Are you just as eager as I am to see that happen?


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## Herdfan

jacmyoung said:


> IBut here is the kicker, a lot was said by the TiVo fear mongers about what all this can do to confuse the DISH subs and scare the potential subs off, yet you see E*'s quarterly reports, they keep adding more and more new subs, their churn rate is now even less than DirecTV's.


But in reality, how many subs or potential subs have any idea there is a court case over the DVR's. I am sure that the E* CSR's are not informing potential new customers that their "DVR's might be shut off in a month."


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## tivonomo

jacmyoung said:


> Wait, even if after E* disables its DVR and turns it into a receiver, you still cannot hook it up with another DVR recorder?


So you changed your idea from using an external drive to using a DVD recorder to not give the customers what they want... which is a DVR.

Of course that will not happen. Is Charlie going to throw in a few hundred DVD's as well and a Sharpie? (I have to disclose that I borrowed this line from someone else)


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## jacmyoung

Herdfan said:


> But in reality, how many subs or potential subs have any idea there is a court case over the DVR's. I am sure that the E* CSR's are not informing potential new customers that their "DVR's might be shut off in a month."


Of course it is not necessarily E*'s job to tell the subs that, if E* already has an option, or several options, but it is up to TiVo and its followers to scare those E* subs off. So far they have done a terrible job, not only did then not manage to scare those E* subs and the potential E* subs off, to the contrary, TiVo's own subs for reasons unknown to us, are fleeing TiVo in record numbers.

I guess the above is another proof that while TiVo's folks maybe good in court, they have no clue about the marketplace. There is a phrase for that, I don't remember what it is but I swear it has something to do with "life support services on wheels" and "the running man", or somethings like that.


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## jacmyoung

tivonomo said:


> ...Of course that will not happen...


That was my line. What is it Tivonomore? Did you run out of lines, started to borrow others'?

Of course it is a hypothetical scenario. A DVR type of device is just another version of the "external hard drive", wrapped in various disguises. But don't try to avoid my question, are you just as eager as I am to see TiVo in violation of the TiVo injunction?


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## tivonomo

jacmyoung said:


> That was my line.


So your line is this? "Of course that will not happen."

That's ironic coming from someone who continually posts speculation that never happens.


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## TBoneit

bnborg said:


> They even have DVD recorders with hard drives in them, that are also DVR's.


Tell me about it. I have two with hard drives in them.
One of which has a ATSC / QAM tuner. I have that one hooked up to basic cable and it tunes the digital channels, although it records in SD. The other one is analog only. Not to mention the Tivo series one standalone lifetime sub. Sine the DVD Recorders hook up with Component the video is decent



Matt9876 said:


> Snip:
> 
> As I could wait no longer and economic issues prevailed I switched to DishNetwork eastern arc service with a VIP DVR. I am very happy with the move and service,This proposed shutdown of DVR service upsets me greatly since I've paid my fair share to both sides in this court battle.


The VIP Series as I understand it are not included in the shut off list, So don't worry, Be happy.

MY only regret is that they won't be installing the Eastern Arc until Sunday.

Cheers


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## Herdfan

jacmyoung said:


> Of course it is not necessarily E*'s job to tell the subs that, if E* already has an option, or several options, but it is up to TiVo and its followers to scare those E* subs off. So far they have done a terrible job,


Some of the dumba**es in this country cant even find their own state on a map. Even if TiVo ran commercials every hour on the hour on every network, (which would probably be FF'ed through ), most people still couldn't describe the case in complete sentences.


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## tivonomo

TBoneit said:


> The VIP Series as I understand it are not included in the shut off list


Maybe not explicitly but the number of DVR's used in calculating the award seems to have had to include at least some of the ViP's.

If there are differences in that software on the ViP's I would be first in line wanting to know what they are and why that software wasn't used in the first workaround.


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## jacmyoung

Herdfan said:


> ... most people still couldn't describe the case in complete sentences.


Can you? I read some of those court transcripts and files and the judges' orders, while I think those lawyers and judges might be able to speak in complete sentences (I have serious doubt but I will give them the benefit), their own sentences seemed not in agreement with one another, in fact they are so far apart in disagreement they make your average dumb#$%^& look like geniuses


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## jacmyoung

So now we have an analyst saying if there is no settlement between E* and TiVo, it will harm TiVo more. What's up with that?

For months and months we learned from the fine Tivo folks here that if E* did not agree to settle, E* would face certain extinction, TiVo would simply exclude E* from ever able to use DVRs.


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## tivonomo

jacmyoung said:


> So now we have an analyst saying if there is no settlement between E* and TiVo, it will harm TiVo more. What's up with that?
> 
> For months and months we learned from the fine Tivo folks here that if E* did not agree to settle, E* would face certain extinction, TiVo would simply exclude E* from ever able to use DVRs.


I believe it would suck short term for both companies stock price. Although, one could speculate that TiVo could have an incentive from DirecTV to not settle. We know the DirecTiVo is due out in the next year. If that became the DirecTV standard, for the right price TiVo could refuse to settle with Dish. It also could result in other MSO's settling.

Unfortunately, Dish won't have the same options. If their DVR's are about to be shut down, they will suffer a major blow that could take years to overcome.


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## jacmyoung

tivonomo said:


> I believe it would suck short term for both companies stock price. Although, one could speculate that TiVo could have an incentive from DirecTV to not settle. We know the DirecTiVo is due out in the next year. If that became the DirecTV standard, for the right price TiVo could refuse to settle with Dish. It also could result in other MSO's settling.
> 
> Unfortunately, Dish won't have the same options. If their DVR's are about to be shut down, they will suffer a major blow that could take years to overcome.


Have you ever spent time reading the DBSTalk new DirecTiVo thread?

Now you still did not respond to the question, that analyst said if E* and TiVo does not settle, it will harm TiVo more than E*. Are you calling that analyst stupid? Because I remember you just said you would rely on the analysts more than the CEOs.


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## scooper

Even at worst possible case (i.e. the total shutdown of E* DVRs (unlikely as it ever is to actually happen) - Echostar's "core business" is NOT DVRs - it is being a DBS provider. True, not having a DVR would be a competitive disadvantage (maybe a large one/ too large), But I for one do NOT think it would kill Echostar as a company. OTOH - Tivo losing essentially puts them out of business - or if Echostar/Dish gets a successful workaround.


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## Kheldar

scooper said:


> Even at worst possible case (i.e. the total shutdown of E* DVRs (unlikely as it ever is to actually happen) - Echostar's "core business" is NOT DVRs - it is being a DBS provider. True, not having a DVR would be a competitive disadvantage (maybe a large one/ too large), But I for one do NOT think it would kill Echostar as a company. OTOH - Tivo losing essentially puts them out of business - or if Echostar/Dish gets a successful workaround.


TiVo wouldn't be put out of business. If the patent is determined to be invalid, or they lose this suit, they would just have to compete against other DVRs on the market (like they've been doing for years), and keep innovating so that the cable/satellite companies will want to use their product instead of developing their own. Obviously DirecTV felt it necessary to co-develop a TiVo-branded DirecTV DVR, so if TiVo keeps innovating they may be able to survive as a supplier for DVR technology to other providers also.


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## tivonomo

jacmyoung said:


> Now you still did not respond to the question, that analyst said if E* and TiVo does not settle, it will harm TiVo more than E*. Are you calling that analyst stupid? Because I remember you just said you would rely on the analysts more than the CEOs.


Once again, get your facts straight. That is a very tortured interpretation of what I actually wrote... If I would call anyone "stupid", it would have to be you. Here is what I _actually _said:



tivonomo said:


> Continuing the analysis of incentives, analysts have more of an interest in getting their analysis right. I would give their analysis more weight in most cases. Analysts are often wrong but CEO's are still wrong more often.


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## jacmyoung

tivonomo said:


> Once again, get your facts straight. That is a very tortured interpretation of what I actually wrote... If I would call anyone "stupid", it would have to be you. Here is what I _actually _said:


Do you realize that often times in court "totured interpretations" end up carrying the day?


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## tivonomo

jacmyoung said:


> Do you realize that often times in court "totured interpretations" end up carrying the day?


In Dish's case, it cost them a contempt sanction.


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## jacmyoung

tivonomo said:


> In Dish's case, it cost them a contempt sanction.


May I again urge you to find a "tortured interpretation" of my above words: "end up carrying the day"?

BTW go tell your village folks that if there is a settlement, the court case will end, no sanctions, no damages. You guys need to understand the very basics of a settlement.


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## tivonomo

jacmyoung said:


> May I again urge you to find a "tortured interpretation" of my above words: "end up carrying the day"?


OJ got off on one very tortured interpretation of some evidence. Luckily for TiVo, CAFC judges are mostly more intelligent than OJ's jury.



jacmyoung said:


> BTW go tell your village folks that if there is a settlement, the court case will end, no sanctions, no damages. You guys need to understand the very basics of a settlement.


I'm not your carrier pigeon. If you have something to say to someone else, don't ask me to do it. Besides you are oversimplifying. Sanctions and damages will most certainly be included in any settlement... directly or indirectly. Otherwise, TiVo has no incentive to settle when the court would order those past damages paid.


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## James Long

Let's cut out all the petty bickering or we'll be waiting for the next major action in silence.

Thanks!

*James Long*


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## jacmyoung

tivonomo said:


> Luckily for TiVo, CAFC judges are mostly more intelligent than OJ's jury.


In my view as well as the view of Judge Rader, TiVo got off on some very tortured interpretation of the evidence such as the PID filter, we will see what happens next.



> Sanctions and damages will most certainly be included in any settlement... directly or indirectly. Otherwise, TiVo has no incentive to settle when the court would order those past damages paid.


So far I have interpreted what Charlie had said in a "tortured" way that he is seeking an exclusive deal of around $120M a year in return of TiVo working with him, not the others. Whether TiVo will consider such deal is entirely up to TiVo, if you say TiVo will not even give such offer a look, I can see your point. But if TiVo should agree, then such deal will end the case, no sanctions, no damages, only $120M a year and TiVo must only work with E*, not the others.

Again don't get upset with me, I am only trying to interpret what Charlie said in a "tortured" way. I do not claim to know it, nor claim that it is right.


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## CuriousMark

Kheldar said:


> TiVo wouldn't be put out of business. If the patent is determined to be invalid, or they lose this suit, they would just have to compete against other DVRs on the market (like they've been doing for years), and keep innovating so that the cable/satellite companies will want to use their product instead of developing their own. Obviously DirecTV felt it necessary to co-develop a TiVo-branded DirecTV DVR, so if TiVo keeps innovating they may be able to survive as a supplier for DVR technology to other providers also.


+1, I could not have said this better myself. TiVo loosing is status quo, no change from the present.


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## CuriousMark

jacmyoung said:


> So far I have interpreted what Charlie had said in a "tortured" way that he is seeking an exclusive deal of around $120M a year in return of TiVo working with him, not the others. Whether TiVo will consider such deal is entirely up to TiVo, if you say TiVo will not even give such offer a look, I can see your point. But if TiVo should agree, then such deal will end the case, no sanctions, no damages, only $120M a year and TiVo must only work with E*, not the others.


I am sorry, but I see nothing that can even be tortured into a lowball offer that also requires exclusivity.

I do see Charlies words as an opening gambit in a potential bargaining session, it makes sense that he would start with a lowball offer of 120M a year, he would be silly to start higher and cede negotiating room. I do not see him asking for an exclusive deal though. I see him saying he is willing to work with TiVo if he gets his way, but nothing more than that so far.


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## tivonomo

jacmyoung said:


> In my view as well as the view of Judge Rader, TiVo got off on some very tortured interpretation of the evidence such as the PID filter, we will see what happens next.


Judge Rader isn't exactly that credible. In the November 2nd hearing he kept referring to PID filter as a PDI filter. Meanwhile, Judge Folsom has been involved in this case for years and is a bona fide expert on the subject matter. One may disagree with him, but a Rader dissent just doesn't hold as much water.

Just to define what tortured interpretations are... it is when one interprets something in a way that is distorting the plain language of the words.

It is very common in a legal context. Such as Bill Clinton trying to redefine the word "is". In this case, a tortured interpreation was the disablement clause of the injunction. Most people understand that "all means all" and that disable does not mean alter the software and continue to operate as normal. But that is exactly what Dish chose to do rather than simply appeal the wording of the injunction.


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## jacmyoung

CuriousMark said:


> +1, I could not have said this better myself. TiVo loosing is status quo, no change from the present.


Of course the status quo for TiVo without the court win is not going to be pretty for TiVo. To think that TiVo can compete with the major DVR providers without this court win? Let me just say that please allow me to disagree with you.


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## jacmyoung

CuriousMark said:


> I am sorry, but I see nothing that can even be tortured into a lowball offer that also requires exclusivity.
> 
> I do see Charlies words as an opening gambit in a potential bargaining session, it makes sense that he would start with a lowball offer of 120M a year, he would be silly to start higher and cede negotiating room. I do not see him asking for an exclusive deal though. I see him saying he is willing to work with TiVo if he gets his way, but nothing more than that so far.


Again that is my interpretation, you do not have to agree with me.

Can Charlie up the offer? Sure, but again based on my interpretation of his past, he would not up the offer by much, if TiVo rejects his offer, he will go all the way, this much he had already said so, he is ready to turn off those DVRs.


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## Stuart Sweet

Now that there's another chapter, I'm going to close this thread and start a new one.


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