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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. the judge

    the judge Duplicate User (Account Closed)

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    Any chance of citing a reference to this breaking news? Or did you make that up too?
     
  2. Greg Bimson

    Greg Bimson Hall Of Fame

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    This sounds a bit like lawyering:
    The end result was ALL CLAIMS were left standing. PTO invalidated a few, and those few were reinstated.

    The main reason no one is implementing agreements with TiVo is because DISH/SATS has not settled the suit. Everyone is waiting to see how this plays out.
     
  3. Greg Bimson

    Greg Bimson Hall Of Fame

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    Isn't that the topic for the two-day hearing in late February? Therefore, TiVo does not need to make those arguments until then.
     
  4. jacmyoung

    jacmyoung Hall Of Fame

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    Not true, the judges order parties in the dispute to provide disclsoures to one another, including facts, documents, legal theories, witnesses and all related information , parties must obey the order, if any one of them hides anything from the other, it will be in serious trouble.

    The only thing you can say is well we have not seen the disclosures yet, true but we have seen some of the filings and the accusations brought up by each other, and when E* accused TiVo of providing only "four empty sentences", TiVo did not dispute that, and later TiVo said themself they only need that one sentence.

    They cannot then go to the judge at the hearing say oh BTW your honor we have a lot more to say now but we did not tell E*. TiVo will be kicked out of the courtroom if they do that.
     
  5. jacmyoung

    jacmyoung Hall Of Fame

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    Can't say I disagree with you but it is unlikely E* will use this argument since it has no legal bearing on the current proceeding, but that certainly may not stop them from making other arguments.
     
  6. the judge

    the judge Duplicate User (Account Closed)

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    Dead Wrong again. The reason Tivo argued every claim construction they could is because infringement can be found if ANY of the dependent claims are violated.

    You have it exactly backwards. Echostar has to avoid infringing ALL of Tivo's independent claims and dependent claims (embodiments), which are articulated through claim construction.
     
  7. jacmyoung

    jacmyoung Hall Of Fame

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    Look I do not know where you are coming from but please do not call others "dead wrong" before you even know what you are talking about or what others are talking about.

    To find infringement on a paticular patent claim, each and every one of the claim limitations must be met, and in each claim limitation, there are multiple constructions, each must be touched on in order to prove that such particular limitation is met.

    Therefore to prove infringement, TiVo had to use pages and pages of claim charts to list their each contention for each limitation, and address each construction that appear in that limitation.

    Now all TiVo is addressing is the single construction called "parse", which is only one of the multiple constructions in one of the ten limitations of the Claim 31.

    Try to prove infringement on that? In their dreams.
     
  8. James Long

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

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    Isn't DISH admitting to all of the other constructions? It seems that the two parties agree that TiVo's patented process and DISH's patent pending process are nearly identical. TiVo is just focusing on the point that DISH claims is different from the TiVo process and saying "no it isn't".
     
  9. the judge

    the judge Duplicate User (Account Closed)

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    Jacy, have you ever applied for and received a patent, and then defended it against infringement?

    Do you understand that there are many types of claims in a patent, some of which are dependent on others? If you violate an independent claim, then you violate all of the claims dependent on that claim. Those dependent claims are often articulated through claim construction, but often not as vigorously as the underlying independent claims. All the patent owner has to show is infringement of either any independent claims or any dependent claims.

    You can't just argue that you built it out of a different material, or painted it with a different color, and say you got around all the claims. Put another way, you can't just change one step in a process and claim non-infringement if the other steps in the process are part of the patent.
     
  10. jacmyoung

    jacmyoung Hall Of Fame

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    That is the problem, TiVo is still living in the past, before the design around.

    The reason E* lost was they could not dispute the existence of all the constructions, only to dispute the definitions of them. TiVo was successful in proving E*'s old design contained all the necessary steps that met the definitions of those constructions. "Parse" was the only thing E* said they did not do, and they had hoped if they could prove they did not parse, it would be fine, but TiVo proved E* did parse. But the reason the infringement was found was because E* had all the others too, the "physical data source", the "temproary", the "store", the "source object", the "extract from the physical data source", and the "automatic flow control", just to name a few.

    Now E* says, we have removed those above constructions from our new design, as they no longer exist! What TiVo needs to do is to prove that no, those above constructions still exsit in the new design, they are not gone.

    Instead, TiVo is saying but E* in the past said "parse" was the key, so we now go by what E* was saying before, never mind what E* is saying now, "parse" it is then.

    But guess what, E* lost with that "parse" argument you know. So how can TiVo now use the same lost cause and hope they can win on that alone?

    On a second read, I understand you were referring to E*'s comment of the difference between their new patent and the TiVo's patent, saying the difference was they no longer "parsed". Yes E* might have said that, but only in the context of no longer parse the way as described in the TiVo patent.

    But even if TiVo was correct, they still cannot simply use E's past logic for proof, because E*'s current logic is different. E*'s past logic may be flawed, and if you only try to attack an already flawed logic hoping to win, it is called "begging the question", a flawed way of arguing.

    E*'s current logic is we do not do all of the above, therefore TiVo must respond in kind, argue that no you still do all of the above. But TiVo cannot say that, because E* indeed no longer do all of the above, so the only thing TiVo can do is beg the old question which had been proven flawed, and attack that one.

    TiVo needs to argue that E*'s current logic is flawed, not living in the past.
     
  11. Herdfan

    Herdfan Well-Known Member

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    Teays...
    E* said they never infringed in the first place. Can you give me one good reason we should believe them now? Would you be willing to bet your own money on what they say? Just asking?
     
  12. jacmyoung

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    But E* had never said they did not have all those constructions before, E* admitted they were there, only that they did not believe some of them, for example the "parse", was the same kind of "parse".

    Now they say we do not have them, what you need to do is to prove no, you still have them, if you say but you were wrong before therefore you must be wrong now, regardless what you say now, you have just committed the exact same fallacy as I described above:)
     
  13. the judge

    the judge Duplicate User (Account Closed)

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    Tivo is living with their patent which was invented and filed long before Echostar infringed it and long before they claimed they designed around it.

    Echostar argued and lost BOTH that they did not infringe the four independent claims, AND that they did not infringe the claim constructions. They argued a lot more than they didn't "parse" or that they didn't infringe based on Tivo's definition of "parse" .

    Do you have access to the sealed motion where Echostar cites they have removed all the patented constructions? Could you please cite it, or qualify this statement as "just your opinion".

    Tivo will be making the same basic arguments they made at the trial, that Echostar is infringing their independent patent claims and/or infringing the dependent claims.

    This isn't English and makes no sense.

    Again, could you cite the reference where Echostar claims they "do not do all of the above". Again, Tivo will look at each attempt that Echostar makes to claim they no longer infringe the patent and compare it to the patent's claims.

    And Folsom has actually given Tivo three independent theories to attack. One is that the specific changes Echostar made in the workaround are merely colorably different, i.e. they don't amount to a new process. Two, regardless of the workaround, there are other claims on the patent that Echostar continues to infringe, i.e. that the have not "worked around" all of the findings of infringement. And three, that even with the workaround(s), the process still meets infringement under the doctrine of equivalents, i.e. the process does not fall within the literal scope of a patent claim, but nevertheless is equivalent.

    Tivo is living with the definition and descriptions of the patents they filed a long time ago. You better believe Tivo is living and thriving in the past.
     
  14. jacmyoung

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    I will respond to you just one last time, go read all the filings by E* where they said over and over what are the things they have removed in their new design. They are not sealed, and TiVo's response to them are not sealed.

    And why TiVo may only argue on this one "empty sentence" when they go into the hearing? Because they cannot go into the courtroom and suddenly start to talk about all the things they have done during the jury trial, they must first do so in their disclosures to E* already, and they did not do so, because E* said they only disclosed "four empty sentences", and TiVo's response is TiVo only needs one such sentence.

    Therefore TiVo must only argue on that one sentence at the hearing, anything more than that needs to be fully disclosed to E* before the hearing. The disclosures are already over, both had done so, next step is cross examination of the expert witnesses, besically to verify what is said in the expert disclosures, not to offer any new legal theories.
     
  15. the judge

    the judge Duplicate User (Account Closed)

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    First, you misread the motion to compel. Echostar referred to Tivo's "empty sentences". Which means more than one, or many. Therefore, more than one, or many, issues were generally detailed.

    Second, you have never seen the expert disclosures Tivo produced for this hearing, because they are not filed with the court. Yet here you go again quoting from them. And then you claim Tivo didn't make certain disclosures because Echostar said so?

    Dead wrong again. The truth is that Echostar complained that Tivo's preliminary disclosures (which you have never seen) "provided conclusory assertions revealing nothing", and referenced Tivo's "insufficient" arguments related to limitations requiring frame indexing, alleged changes to the DP-50X products which were insubstantially different from the claims, manipulating data during playback, and infringement of the ‘parses’ limitation literally and/or under the doctrine of equivalents (that's clearly a lot more than just one issue).

    The truth is that the Court rejected Echostar's whining, and dismissed their motion to compel, stating the obvious that Tivo's expert disclosures "will likely cure any prior deficiency". Which must have happened, because Tivo made those disclosures on December 24 and Echostar has shut up.

    Wrong yet again. You base these absolute conclusions on your faulty foundation that since Echostar said it therefore it must be true, along with your misreading of the documents that have been produced. Most of what Echostar has said has been proven by a judge and jury to be wrong, and by adopting their arguments as fact and misinterpreting documents, you are developing the same reputation.
     
  16. jacmyoung

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    Do you have evidence that TiVo had cured its deficiency? E* outlined TiVo's four "empty sentences" as its argument that TiVo was deficient, did you read those four empty sentences?

    Who said E* had shut up? After TiVo's expert disclosures, E* files a motion to delay the hearing by 4 months or 5 more hours. Not only was E* not shut up, E* had a lot more to say about TiVo's deficiency, not only that, E* added another accusation that because TiVo was only saying that single empty sentence, TiVo now is trying to change the patent claim limitations. Because of that a lot more time is needed to reexamine the claim limitations.

    While there are a lot of info under seal, we can still gleam from the two open filings from both E* and TiVo, and in TiVo's latest response objecting to E*'s delay request, TiVo again confirmed what E* said, that TiVo is saying only one of that four sentences, and because of that there was no need to delay. If having 4 sentence was deficient, how can only a single sentence from that 4 possilbly had cured the deficiency?

    And the judge said the reason there is no need to delay is E* had sufficient time and should be able to address "all the issues" at the hearing. He did not say TiVo had cured its deficiency, only that E* needs no more time to cure any of E*'s own issues, E* will be able to address all issues, and with that you can also say E* has no deficiency to be concerned about.

    Now that is not to say the judge believed TiVo was still deficient, only that you cannot find anything to indicate he thought TiVo had cured its deficiency, only that he told E*, stop thinking you need more time, you have said all you need to say, you are not deficient.

    And that is what we do know today. And I am going by what we do know, while it is true there may be something more under seal we do not know, the central issues are on the table.

    You can of course continue to argue that I am doing the spin still, and that much I do not deny, I have been doing the spin for the last 8 months, or I like to call it speculating, the only problem you folks have is, you have nothing to spin, and you have still nothing to say for yourself other than but next time, you just wait for the next time.

    I on the other hand have been proven correct on at least 5 or 6 issues which I will not waste time to list them again, you can find them from the past posts.

    Go ahead wish for the next time, because that is all you had been doing, and is all you will do, to wish for it.

    I do not wish for anything, I state my reasoning based on my speculations from exactly what have been said, not what might have been said. And this much I have been saying, the judge's "substantive infringement analysis" is premature, if, and only if he rules an infringement on the new design, his ruling will be vacated on appeal.

    Therefore, half of this next hearing will be a waste of time, just like Curtis52 said before that the 9/4 hearing was a waste of time too.
     
  17. the judge

    the judge Duplicate User (Account Closed)

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    So now you understand it was four sentences, and not one, so you admit you were wrong there. We believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December.

    Again, we know that Echostar has shut up because we can see every time they whine to the Court. We can't always read it, but we know the subject. As a matter of fact, how do you know that Echostar had a lot more to say about TiVo's deficiency when their filing was sealed? You don't, you're making it up. Echostar's last filing had nothing to do with Tivo deficiencies, the Court DENIED all of Echostar's requests, and gave both sides 2.5 more hours to argue.

    Could you explain again your single empty sentence theory, because the only reference to "empty sentences" is from Echostar's motion to compel, which was DENIED. So your theory based on some single empty sentence is a farce.

    Again, please use English - this is truly an example of a "single empty sentence". Echostar quoted four of Tivo's arguments in their motion to compel, and further disparaged other Tivo disclosures. That would mean that Tivo raised at least six (four plus others) issues, and not just one as you wrongly conclude.

    The judge never said Tivo had any deficiencies, he only stated that if Tivo had any they would likely be cured in the expert response. There is no mention anywhere that Echostar had any deficiencies to cure, by the judge or by Tivo. So that whole theory is is complete garbage.

    All we know jacy is every issue I have challenged you over you have lost. And you now admit your theories are speculation and spin. Neither of those have much value on a board like this which should be more focused on examining real facts and circumstances and applying real law so we can all understand the case a little better.
     
  18. jacmyoung

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    Who is we? TiVo?:) If you represent TiVo, I have even less to be worried about:)

    Of course it was 4 sentences before, only that E* succeeded in getting TiVo to admit they only now have one sentence left. What do you mean E* did not whine? What was this big whine about needing a delay?

    I just said this new delay motion, while failing to succeed by itself, which no one thought it would fly anyway, got TiVo to say on the record they only have one sentence.

    Because TiVo said so, in trying to defeat E*'s motion for the delay, TiVo said there is no need for more time from TiVo, because TiVo is only saying one thing. How many times do I have to explain this to you?

    And this motion also succeeded in another issue, that is TiVo for all that time was also arguing that E*'s design around effort was in bad faith. In this E* motion, E* said since TiVo was making the good faith/bad faith an issue, E* needed more time to prove their good faith effort.

    What was TiVo's response? TiVo said good faith/bad faith, did not matter. So E* now got TiVo to fall in the trap, and TiVo can no longer argue next time that E*'s design around was in bad faith, because TiVo said themselves, good faith/bad faith, didn't matter.
     
  19. the judge

    the judge Duplicate User (Account Closed)

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    "We" refers to everyone who reads and contributes to this forum.

    Wrong again. Here's a direct quote from Tivo's opposition to Echostar futile attempt to delay the hearing: "The issues for the upcoming February hearing are narrow and involve a handful of modest (indeed, no more than colorable) changes to a defined set of products that implicate only a few claim limitations."

    This is a senseless argument. From Tivo's opposition "It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability." This hearing is about infringement and contempt of the court's injunction, and good faith has no bearing on those issues.

    Furthermore, it is stupid to suggest that bad faith has any relevance if there is no infringement. The bad faith argument matters as to damages if Echostar is found to infringe.
     
  20. James Long

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

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    Speak for yourself ... there are a lot of "we" that do not agree with you and the TiVo friendly view of the situation. :)
     
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