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The Tivo vs Echostar (mostly speculation) Thread

Discussion in 'General DISH™ Discussion' started by Rob Glasser, Apr 11, 2008.

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  1. Apr 12, 2008 #41 of 855
    jacmyoung

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

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

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

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

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

    A patent is uesless if no one is using it.
     
  2. Apr 12, 2008 #42 of 855
    Steve

    Steve Well-Known Member

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

    I suspect they're just waiting for the cash so they can use it to pursue more litigation against DISH and others. /steve
     
  3. Apr 12, 2008 #43 of 855
    Curtis52

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    I never said TiVo would refuse to license. I'm just pointing out who has the upper hand in negotiations. Dish stands to lose $240 million per month in lost revenue if those DVRs get turned off with no guarantee that any replacement DVRs (at a hardware cost of $billions) wouldn't also infringe. I'm guessing those millions of ex-customers that migrate to cable or DirecTV out of necessity might never go back to Dish anyway.
     
  4. Apr 12, 2008 #44 of 855
    righton2

    righton2 New Member

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

    Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff – Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiff’s DVRs. The availability of the infringing products leads to loss of market share for Plaintiff’s products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm – Plaintiff is losing market share at a critical time in the market’s development, market share that it will not have the same opportunity to capture once the market matures.
     
  5. Apr 12, 2008 #45 of 855
    HobbyTalk

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    That is unless the current software no longer infringes on the patent. Then they no longer continue to suffer irreparable harm.
     
  6. Apr 12, 2008 #46 of 855
    jacmyoung

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

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

    The game plan is of course to delay the process, and buy time to alleviate any service interruption should the worst become reality.
     
  7. Apr 12, 2008 #47 of 855
    righton2

    righton2 New Member

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


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

    So Folsom is biased, the jury is biased, the federal circuit judges are biased, and a new judge will be authorized to proceed over new trial regarding a workaround software solution that E* has developed. I think you are delusional. Good luck on that one.:lol:
     
  8. Apr 12, 2008 #48 of 855
    BNUMM

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    Tivo could also bring up the "Doctrine of Equivalents" which has already been decided by the Supreme Court.
     
  9. Apr 12, 2008 #49 of 855
    Greg Bimson

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    Hold on.

    "Judge Folsom had clearly demonstrated his bias?"

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

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

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

    I can think of two cases where a workaround may have been possible, and in each case, the defendant settled.
     
  10. Apr 12, 2008 #50 of 855
    Steve

    Steve Well-Known Member

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    Assume one of the cases you're referring to is the Blackberry settlement in '06. Blackberry paid the $600 million, but what was the final resolution? Did they ultimately deploy the work-around s/w, or license the patent they violated? If the latter, are they still paying NTP, above and beyond the settlement? /steve
     
  11. Apr 12, 2008 #51 of 855
    jacmyoung

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

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

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

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

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

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

    Now I am done explaining, if you still don't get it, either I am no good at English, or you guys need to go back to grade school, but either way I am not going to waste any more time on this. I have more than once been blamed by the mods for talking too much:)
     
  12. Apr 12, 2008 #52 of 855
    righton2

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    I don't know of a case that went that far, and I don't think this will either. E* claims to have already implemented non-infringing software. If they are wrong and work around is found to still be violating the Tivo IP, not only will they pay more to Tivo, but E* stockholders and some of you subscribers will be lined up to sue E* for malfeasance. Charley better settle, even if he truly thinks he has a workaround. Otherwise, his troubles with this case may be just beginning.
    Ok... Rimm and NTP. The other one????
     
  13. Apr 12, 2008 #53 of 855
    righton2

    righton2 New Member

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    I graduated from grade school and your English is fine. but....you are delusional in how this will be dealt with in the legal system. Let's say you are correct and E* gets another impartial judge to preside or decide if the new software infringes. Then... the new judge and or jury conclude that it still infringes. Meanwhile another software upgrade is deployed and E* claims that it does not infringe. So the system has been gamed and I don't think the judges are gonna let that precedent take place. That is likely what happened with Rimm and NTP... the judge sternly warned RIMM to settle. (even though RIMM claimed to have new non-infringing software) I think Charley is one of those execs that will need to have it explained to him in no uncertain terms that he doesn't rule the world and the consequences for gaming and mocking the legal system can result in serious damage to him and his company.
    If your point is that E* should get another judge because he is biased... Fine, but it ain't gonna happen. I wish I was playing in the Master's right now....but that's called wishful thinking.:)
     
  14. Apr 12, 2008 #54 of 855
    Greg Bimson

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    As Steve and righton2 mentioned, one is NTP v. RIMM (the Blackberry case), the other is Verizon v. Vonage, which I've since found out there wasn't even a work around.
    The final resolution? RIMM, the makers of Blackberry, paid NTP the $612 million.

    A few weeks later, as I understand it, the patent was thrown out.
     
  15. Apr 12, 2008 #55 of 855
    kog

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    For Dish DVR subscribers, I doubt they need to worry about their DVR's getting turned off anytime soon (within a year). There are still many ways that Dish can drag this case out. First is the SCOTUS appeal, they have 90 days to file that appeal but the SCOTUS term ends in June and won't be back till Oct. So if Dish files late near the end of that 90 day window, they won't get a response till near end of the year. Once it's rejected (as most people suspect it will), it will then go back to Texas at which point Dish will argue that the injunction is no longer needed because of the new software. Only way to prove this is by another trial, during which time Dish will probably be able to successfully argue for a stay of the inunction. And if Judge Folsom denies that, they can again always appeal that judgement. So there are still quite a few hands for Dish to play out. In the end Charlie will probably pay out more in fines + lawyer fees than just licensing the Tivo software. But that's just the way Charlie is. And without a licensing agreement Tivo isn't exactly going to be making a lot of money on this either because they have hired some of the best (ie highest priced) attorneys in the field so their lawyer bills aren't exactly small either. The real danger for Dish in this case is if Tivo can get the hardware claim put back in by using the 'doctrine of equivalents'. If that happens then Tivo will have a much stronger hand because they can then ask for an injunction on quite a lot more of Dish's DVR's.
     
  16. Apr 12, 2008 #56 of 855
    Greg Bimson

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

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

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

    But it is slightly unpredictable at this time. If the judge does grant Dish Network and Echostar the ability to avoid the injunction by proving their software does not infringe, it is very possible that everything in dispute will be back on the table such as the newer DVR's and the hardware claims, because these are all issues that must be addressed in this case.
     
  17. Apr 12, 2008 #57 of 855
    Steve

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    That's unbelievable! Did RIMM get any money back, for settling under "vacated" cirumstances? /steve
     
  18. Apr 12, 2008 #58 of 855
    Curtis52

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    Dish will likely not be granted a stay.

    "(2) Pending Petition for Certiorari.

    (A) A party may move to stay the mandate pending
    the filing of a petition for a writ of certiorari
    in the Supreme Court. The motion must be
    served on all parties and must show that the
    certiorari petition would present a substantial
    question and that there is good cause for a
    stay. "
     
  19. Apr 12, 2008 #59 of 855
    righton2

    righton2 New Member

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    The mandate for the injunctive remedy will be issued by next Friday April 18. The 30 day countdown will begin. Unless the Supremes step in and issue a stay, those Dish DVR's are gonna go down before the end of JUNE. That 90 day window that E* is counting on is unlikely as the denial from the CAFC took place without objection from any panelist judges. I'm inclined to believe that the Supreme Court will not issue a stay. So Charley's cards are bad and I expect he will fold in the next several weeks.
     
  20. Apr 12, 2008 #60 of 855
    Kheldar

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    Blackberry announced the settlement on March 3, 2006:
    The original lawsuit involved 5 patents.

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

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