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TiVo vs. Dish: Judge orders Feb. 2009 hearing on infringement

Discussion in 'General DISH™ Discussion' started by Curtis52, Nov 20, 2008.

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  1. Nov 20, 2008 #1 of 1907
    Curtis52

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    O R D E R

    Before the Court is TiVo’s Motion to Hold EchoStar In Contempt For Violation Of This Court’s Permanent Injunction. Dkt. No. 832.

    The Court will hold an additional hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar’s DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present their case.

    IT IS ORDERED that the following discovery limitations shall apply to this matter.

    1. Disclosures. To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information:

    a. the legal theories and, in general, the factual bases of the disclosing party’s claims or defenses;

    b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons’ connection with the case, and a brief, fair summary of the substance fo the information known by any such person;

    c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:

    i. the expert’s name, address, and telephone number;

    ii. the subject matter on which the expert will testify;

    iii. if the witness is retained or specially employed to provide expert testimony in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:

    (a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and

    (b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;

    iv. for all other experts, the general substance of the expert’s mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.

    2. Additional Disclosures. Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.

    3. Discovery Limitations. In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts.

    4. Pre-hearing disclosure. Each party shall provide to every other party within 7 days of the trial the following:

    a. the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises;

    b. the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony;

    c. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises;

    d. an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises.

    5. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.

    IT IS FURTHER ORDERED that the following deadlines shall apply to this case.

    Date Event

    December 22, 2008 TiVo’s Expert Disclosures Due

    January 5, 2009 EchoStar’s Expert Disclosures Due

    February 10, 2009 Parties’ Proposed Findings of Fact and Conclusions of Law due
     
  2. Nov 20, 2008 #2 of 1907
    phrelin

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    A bench trial in mid-February on whether the receivers continue to infringe. That allows enough time for another 1,500 posts.:D
     
  3. Nov 20, 2008 #3 of 1907
    CuriousMark

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    LOL!!!
     
  4. Nov 20, 2008 #4 of 1907
    James Long

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    Original document from PACER attached.

    So much for this being a slam dunk for either side. Nearly three months after the September 4th hearing and over six months after the status hearing and the outcome: Another two days in court MONTHS away from today!

    In the spirit of non-repetitive discussion (repetitive discussion leads to thread closure) ...

    Does this "outcome" change your opinion on how the case will be resolved?
    Does this delay hurt Tivo, DISH or both companies by not resolving the issue promptly?

    Remember, discuss the topic and not each other ---
     
  5. Nov 20, 2008 #5 of 1907
    scooper

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    IMO - this is probably the best thing Judge Folsum could do. By having the bench trial, he covers both sides at once and this is in the interest of "Judical economy". Fairest to both sides.
     
  6. Nov 20, 2008 #6 of 1907
    CuriousMark

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    I think in the long run Dish and TiVo will still settle, but it will be delayed. On the other hand, after the bench trial and ruling some of the issues of the case that might have been left up in the air by an earlier settlement will be resolved.

    I think it hurts both companies by leaving them both with large risks that will hold back their ability do as well as they could in their respective industries. I think both would be better off to settle and settle sooner rather than later.

    It is interesting that the judge has left contempt on the table, and brought infringement of the hardware claims under the doctrine of equivalents back into play. If DOE infringement is found, TiVo's patent will be even stronger. If it is not found it will be considerably weakened. It seems like the answer needs to be determined to eliminate uncertainty either way.

    It is also interesting that while he did bring DOE in on the modified DVRs, he did not add the newer units that could also be looked at. I guess that is another kettle of fish for future litigation and perhaps a new trial.

    Some were arguing that a new trial would be needed for this determination, but it seems that the judge is keeping it under the umbrella of the current case.

    Let the 1500 post roll!!!
     
  7. Nov 20, 2008 #7 of 1907
    phrelin

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    Thanks for the PDF.

    No opinion change on outcome. I don't know enough to have an opinion.

    Damage from delay? Compared to the economy?

    Tivo (TIVO) share price at $5.08 is down 42% from September 3, Echostar (SATS) at $13.04 is 59% down, Dish Network (DISH) at $8.37 down 71%, Nasdaq at 1036.51 is down 44%.

    The TiVo case delay will not hurt TiVo more than the economy generally. It could hurt Dish although it's hard to imagine how anyone outside the Dish organization could do any more damage than the folks inside the organization.

    It should hurt Echostar as the code is the basis for that company's DVR products. Dish Network should and could cut a deal with TiVo to offer TiVo boxes as an option like DirecTV did.
     
  8. Nov 20, 2008 #8 of 1907
    Curtis52

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    ENGLEWOOD, Colo. – Nov. 20, 2008 – DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today’s developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:

    “We are pleased that the district court did not find us in contempt on the face of the injunction. We look forward to the February bench trial on our software design-around. Our subscribers can continue using their award-winning DVRs from DISH Network.”
     
  9. Nov 20, 2008 #9 of 1907
    phrelin

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    Hmmmm, "their award-winning DVRs." The DVR's aren't my DVR's. Well, I guess the two 508's stored in a closet are mine. But the ViP722 and ViP612 are Dish Networks.

    If the new code is found to infringe, I have to believe it's essentially the same code design that's in the ViP's. While that will have to be adjudicated separately, Dish Network as a company will be toast anyway as theoretically the dollar clock on infringement on these other boxes will have started. Dish Network does not have enough current assets for a continued fight that it's likely to lose. Again, only if the judge says my two 508's contain infringing code would they be in that position.

    EDIT: My frustration expessed in this post is about the idiotic PR/Marketing of Echostar/Dish which extends much further than just this stupidly worded news release.
     
  10. Nov 20, 2008 #10 of 1907
    Curtis52

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    Very misleading. The judge hasn't ruled on it yet.
     
  11. Nov 20, 2008 #11 of 1907
    Curtis52

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    The judge will also be looking at whether the hardware infringes at the February trial.
     
  12. Nov 20, 2008 #12 of 1907
    jacmyoung

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    I would say so too.

    Remember when the appeals court reversed the hardware verdict, it allowed the parties to re-address it if they wished to. Ordinarily you would think TiVo would be the one who would be inclined to re-address the issue but TiVo did not. But then the judge himself can re-address the issue too, that is the part I did not think about.

    What is surprising to me is, this new order appears the “new action” the judge was telling the TiVo’s attorney on 9/4 because it will be a bench trial, it will be a formal trial, and therefore a new trial, independent of this current trial. Meaning this case is practically over, as far as the contempt issue is concerned, but not the damages part. Apparently the judge decided to delay the damages part until the new bench trial is concluded.

    And this new bench trial will in fact be able to determine if the new design around is still an infringement or not, which is the same goal the case E* filed in the DE court were to accomplish, only that because the DE court had not decided if they would grant E* the trial or not, and the fact Judge Folsom decided to initiate the new trial in his court, E* will not be able to settle it in the DE court, rather again in Judge Folsom’s court.

    Just my speculation as I am no lawyer.
     
  13. Nov 20, 2008 #13 of 1907
    CuriousMark

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    It is a new hearing, which will be a bench trial, but it is still part of the current summary action of contempt, and not a whole new action. If it were a new action, the summary rules you have been telling us about repeatedly would not apply, but here they do.
     
  14. Nov 20, 2008 #14 of 1907
    James Long

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    Personally, I like this outcome ... and while the judge did not explicitly refuse to find DISH guilty of contempt on the face of the injunction (denying the motion) it seems that the argument on that matter has been set aside - looking for the deeper truth. Has DISH ceased infringing?

    Judge Folsom probably should have ordered a bench trial months ago instead of wasting time on the "face of the injunction" issue. TiVo pressed for "face of the injunction" and said in May that they could win that argument. While I don't agree with DISH's press release I can understand it and it is fundamentally true ... DISH was not held in contempt on the face of the injunction. (At least, not yet.)

    It will come down to whether or not DISH actually cleaned up their act and stopped infringing ... but as noted in previous threads there wasn't enough evidence presented to prove the case either way - hence the discovery and trial.

    Did DISH win? Did TiVo win? Nobody has won yet, but DISH should be happy that they are still in the game.
     
  15. Nov 20, 2008 #15 of 1907
    Kheldar

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    Misleading, possibly, but technically accurate. The district court didn't find them in contempt, but they didn't find them not in contempt either. Expect a press release from TiVo saying something about them winning the ruling today also.
     
  16. Nov 20, 2008 #16 of 1907
    spear61

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    Judge has slapped down Dish's attempt to move to the east coast and get a new judge to decide if the "workaround" infringes.
     
  17. Nov 20, 2008 #17 of 1907
    jacmyoung

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    A bench trial by definition is a new trial, cannot be a part of the current trial or contempt proceeding. The current contempt motion is over.

    Now if in the new trial, E*'s new design around is again found an infringement, TiVo can seek a new injunction that will cover the design around, as well as some left over from the last injunction, and later seek a new contempt motion as a part of the new injunction.

    But from this point forward, everything E* and TiVo will be doing will be for this new trial, not the past one.

    The only thing left from the past trial is the additional damages.
     
  18. Nov 20, 2008 #18 of 1907
    jacmyoung

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    Very true.

    I will say though as I have said before, E* probably did not expect their move would succeed. It was a move to force TiVo to address the new design around, because up until that time, TiVo only wanted to address the "face of order" issue, but after the DE filing TiVo was forced to accept E*'s new design around evidence and started to talk about the colorable issue.

    In a sense Judge Folsom was granting E*'s wish, to try the new design around, only that he told E* if you want to try it, do it in my courtroom, not in the DE court.
     
  19. Nov 20, 2008 #19 of 1907
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    The Delaware side of the issue seems to be at a standstill ... but it isn't dead yet.

    Delaware was asked to look at the latest DVR software as the product ... Texas is looking at the named receivers as the product. The ViP receivers are not in jeopardy in Texas. (Until further court action claiming they are "only colorably different".)
     
  20. Nov 20, 2008 #20 of 1907
    peak_reception

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    I disagree. The court spoke (for now) and did not find DISH in contempt "...on the face of the injunction" as DISH says. Nor will that be the issue in February, so DISH phrased their statement accurately. They may well be found in contempt on other grounds, but not on the face of the injunction. Or so it seems to me.

    Having said that, I have to say that you were right about the 9-4 hearing being A BIG WASTE OF TIME. You were right and I was wrong. Amazing but true ;) I'm serving myself a big slice of humble pie tonight for dessert (yuck).

    Why couldn't all of this have been arranged last May 30 ?! Apparently because TiVo didn't ask for it! We were all mystified as to why TiVo didn't even mention the DOE on hardware. Well, this looks to be the answer. The judge appears to be doing TiVo counsel's job for them now by bringing hardware back into it. AMAZING.

    Just when ya think things can't get any weirder....
     
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