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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. jacmyoung

    jacmyoung Hall Of Fame

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    No you did not, you only say my reasoning is flawed, but you did not point out where. All you can say is I am good at imagining, that yes I am guilty of.

    Through my countless imaginations, I have been correct in the following so far:

    1) The hardware claims would not be brought back by TiVo again.

    2) Violation on the face is not enough, colorable difference must be looked at.

    3) Not telling the judge about the design around is not enough of a violation, the design around must be looked at.

    4) Colorable difference must first be looked at, the judge later modified his order to reflect just that.

    5) There is enough on the E* side to argue their case, the judge confirmed this now.

    6) There is nothing new from TiVo, in fact TiVo is saying less than before 9/4/08.
     
  2. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    HUH? :confused:
     
  3. scooper

    scooper Hall Of Fame

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    Quote:
    Originally Posted by jacmyoung View Post
    If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...
    HUH?


    "If it walks like a duck, talks like a duck, swims / flies like a duck, ...."

    Come on - keep up man - if you're going to make fun of someone's arguements - then you better understand them....
     
  4. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Aug 21, 2008
    HUH?:confused:
     
  5. the judge

    the judge Duplicate User (Account Closed)

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    Jan 12, 2009
    Having read all the motions, there is nothing new in Folsom's order and certainly no special insight. All he said was we're going to do this in February as planned, and E* can present their case - which according to Tivo now includes their frame of mind and a rehash of the standards for infringement - in their alloted time. That gives Rachel K. 7.5 hours in front of Folsom, more than any man deserves.
     
  6. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Aug 21, 2008
    What is with this whole "frame of mind" defense?
     
  7. jacmyoung

    jacmyoung Hall Of Fame

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    The Art of Poker - Know Your Opponents and Know Yourself, and of course know the person who can decide the outcome. How they behave, how they think, how they operate.

    Even if in the process of knowing and poking around, you may look foolish, as long as knowing more gives you a better winning odds in the end.

    Through these motions, the strategies of both TiVo and Judge Folsom had been further revealed, even if by very little, the slightest gain in the knowledge of their strategies will give E* increasing odds of winning each time.
     
  8. the judge

    the judge Duplicate User (Account Closed)

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    Jan 12, 2009
    According to Tivo Response to E* emergency motion:

    "EchoStar nevertheless suggests that a full hearing on the factors relevant to a contempt finding needs to be avoided because such a hearing would involve too many issues, specifically identifying "good faith" and validity as such additional issues. (Mot. at 3, 4). Neither state of mind nor validity, however, are properly at issue at the February hearing. It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability."
     
  9. jacmyoung

    jacmyoung Hall Of Fame

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    That is the precise point E* has tried to say, because TiVo had continued to argue E* had conducted this whole design around in bad faith, not telling the judge, playing tricks, trying to delay the process.

    Now TiVo bought into E*'s argument, that good faith or bad faith does not matter, it lays the ground for E* to counter with the same argument, that TiVo's past argument about whether E* did the design around in good faith or not should not matter, the only thing matters is if the modified DVRs still infringe.

    This is another proof that when you continue to poke at your opponent, to push his buttons, you gleam more into his mind, get more out of him that can be used against him. A poker game playing out right in front of us.
     
  10. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Ah, yes, Charlie the professional poker player story, I forgot about that.

    Of course.... :rolleyes:
     
  11. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Aug 21, 2008
    So E* is arguing that trying to design around the patent is good enough?
     
  12. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    This is my favorite part of yesterdays order.

    "In its latest Emergency Motion," !rolling
     
  13. the judge

    the judge Duplicate User (Account Closed)

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    Jan 12, 2009
    My apologies if English isn't your native language, but many, actually most, of your idioms and analogies are tortured. Perhaps that's why your reading of legal briefs is so far off. In layman's terms:

    Echostar argued they needed a lot more time to argue their frame of mind when they made their workaround, and that they did it in good faith, and that the standards for infringing Tivo's patent have changed. Tivo did not buy into any of it and argued against Echostar. Folsom agreed with Tivo almost entirely, but gave Echostar another 2 1/2 hours to argue at the hearing. Echostar will undoubtedly add these three things issues to their arguments, but we know Folsom already has the case law that says they're invalid arguments in a contempt hearing.
     
  14. scooper

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    To listen to Jac's arguements may seem like watching madness -

    BUT -

    If we were to listen to only the TIvo fans here, this contempt hearing would have been over last May - at the latest in September. I'd say he's got some insight on what's going on, even if he goes off to neverland every once in awhile. At least he puts more thought into his posts than a certain member who's posts are mostly one-line zingers denigerating jac.
     
  15. jacmyoung

    jacmyoung Hall Of Fame

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    Remember insult does not raise your credibility.

    TiVo has all this time argued mainly on two points, that E* is in violation on the face, and E*' design around was done in bad faith. They don't have any other legal theory to go by. The "on the face" argument is already pretty much over, done with.

    Now what I am saying is E*'s trying to argue that they need to prove they did so in good faith in response to TiVo's such continued bad faith accusation, but to do so E* needs more time. As several of us said even before the judge's order, E* would not get the delay request granted, we all knew that, but then why even try it?

    The strategy is to get TiVo to come out say that good faith, bad faith, does not matter, now TiVo has said it, E* can use this in all the later debate, that TiVo itself may also not continue to argue that E* did the design around in bad faith.

    This motion succeeded in depriving TiVo of another one of their two arguments, practically leaving TiVo with nothing to argue about.
     
  16. the judge

    the judge Duplicate User (Account Closed)

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    No insult intended jac, just a heads up that the words aren't making sense.

    Do you understand that the hearing is on two completely separate issues?

    Do you understand that the hearing started as a contempt hearing, and Folsom has not yet determined if Echostar is in contempt of his order?

    Do you understand that Tivo is arguing that the workaround is no more than colorably different from the devices that have been legally determined to infringe? If Tivo is right, Echostar is in contempt.

    Do you understand that Folsom decided to expand the hearing to decide that regardless of whether the difference is merely colorable, whether the new devices infringe the patent on their own? I they do, Echostar is in contempt.

    Tivo's legal theories (plural) all revolve around the fact that Echostar has been proven to infringe, they've been ordered to stop infringing which is why they're in contempt, and they continue to infringe by a number of different measures. Echostar's state of mind (good or bad faith) has no bearing on infringement, but it could have bearing on damages.
     
  17. dfd

    dfd Legend

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    Aug 29, 2008
    You are incorrectly stating what Tivo's argument is and then promptly knocking it down.

    Hello strawman.

    Tivo's argument is that E* did not comply with the order.

    E* states that they did by deploying new software.

    Tivo responded that E*'s new software still infringes.

    The judge will determine who is right.
     
  18. the judge

    the judge Duplicate User (Account Closed)

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    Jan 12, 2009
    jac, could you just answer this one question so we can all determine your level of credibility?
     
  19. peak_reception

    peak_reception Icon

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    I have to agree. It looks like EchoStar counsel successfully baited TiVo counsel into abandoning one of the supporting legs of their case which was that Echo is/was acting in bad faith.

    Remember TiVo's motion for Contempt last June which detailed all of Echo's prior court maneuverings/antics which --TiVo claimed -- revealed the kind of mischief Echo was also up to in this case with the "design-around" and all the rest. Bad Faith was never the main argument (that was "prima facie") but it was certainly an important supporting leg.

    It looks like an overreaction for TiVo to so easily cave in on "state of mind." bad faith. It looks like Echo is the mover and TiVo is the shaker at most every turn in this case. Every time Echo says "boo," TiVo counsel jumps (too far). For all the silly-seeming motions and maneuvers It looks like Echo counsel is running circles around TiVo counsel.

    Maybe it's just me and TiVo is actually carrying through on a masterful grand strategy. After all, they've won every important battle so far except for "prima facie" contempt which is presumably still up in the air though I agree with jac that it's actually a dead letter now. TtVo does still seem supremely confident. Over-confident perhaps? I think so. If their case was so bullet-proof they would have won on/after 9-4-08. Judge Folsom carried that ruling over to this next hearing in February but why? I think it was because if he'd ruled in TiVo's favor he'd been overturned on appeal and he knew that. Just my opinion
     
  20. HobbyTalk

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    Let's not forget they also lost on the hardware claims (ok, maybe not "lost" but surely wasn't a win) in the beginning which was half of the case.
     
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