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Tivo vs. Dish: Petition for rehearing en banc granted

Discussion in 'General DISH™ Discussion' started by dfd, May 14, 2010.

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  1. Sep 30, 2010 #281 of 1139
    jacmyoung

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    Good point but I think the en banc panel is BSing:) Just like the 4th question, which take the premise that the injunction is ambiguous, so what do you do with an ambiguous injunction? Should there be a new standard where in some cases it is good enough, others not?

    Of course not.
     
  2. Sep 30, 2010 #282 of 1139
    James Long

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    If you think a court of that level "BSs" when asking questions you probably don't have the appropriate amount of respect for the system.
     
  3. Sep 30, 2010 #283 of 1139
    phrelin

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    Northern...
    Thanks, I appreciate the link.

    After reading the E* filing, my opinion about one thing changed.

    There seems to be an issue or two here that could get the Supremes to take up an appeal by E*, if the en banc goes against E* with at least one well-worded dissent (which might be likely).

    I previously believed that if E* lost this time, they would be unable to create interest on the part of the high court.

    And delay is the name of Charlie's game.
     
  4. Sep 30, 2010 #284 of 1139
    jacmyoung

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    What about an appeal to the Supremes by TiVo? Never gave it a thought?:)
     
  5. Oct 1, 2010 #285 of 1139
    phrelin

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    Just more delay which works in Charlie's favor.

    This go around brought the ATT/Verizon/MSFT triad into play which, of course, is not really relevant since they are such small players in the American economy and so all the judges are unaware of those pending cases.

    If this case drags out long enough there won't be anyone in TV hardware who is not in, or has not been in, a dispute with TiVo. At some point it will become bad politics at higher altitudes where right and wrong aren't considered absolute, ever, in any situation. and all vision is peripheral.

    But then the Supremes are immune to economic politics and what is the right thing to do is so very clear it can be determined by a 5-4 vote.:rolleyes:
     
  6. Oct 1, 2010 #286 of 1139
    jacmyoung

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    As long as the CAFC does not try to make history, the Supreme Court will not review it. And after being slapped a few times in the recent years by the Supremes, the CAFC will likely not try to make history.
     
  7. Oct 6, 2010 #287 of 1139
    Curtis52

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    There is a new status notice on the USPTO site:

    "Reexam Terminated -- Notice of Intent to Issue a Reexamination Certificate Mailed"
     
  8. Oct 6, 2010 #288 of 1139
    Curtis0620

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    So does this mean that the Patent is valid?
     
  9. Oct 6, 2010 #289 of 1139
    Curtis52

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    TiVo Statement on Decision by United States Patent and Trademark Office

    ALVISO, CA -- (Marketwire) -- 10/06/2010 -- TiVo Inc. (NASDAQ: TIVO), the creator of and a leader in advanced television services including digital video recorders (DVRs) for consumers, content distributors and consumer electronics manufacturers, offered the following statement on the United States Patent and Trademark Office (PTO) decision.

    "We are pleased that the United States Patent and Trademark Office has reaffirmed the validity of all claims of the Time Warp Patent at issue in the second reexamination of the patent at the request of EchoStar. This decision by the PTO is final and not appealable by EchoStar. Today's decision further validates our IP and brings us closer to ending EchoStar's ongoing infringement. Moreover, we remain confident that the United States Court of Appeals for the Federal Circuit will uphold and enforce an injunction against EchoStar's ongoing willful infringement of the Time Warp Patent."
     
  10. Oct 6, 2010 #290 of 1139
    jacmyoung

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    Yes, based on both the PTO and TiVo's clarifications of the key claim terms during the reexamination.

    The two key terms clarified by the PTO and TiVo are:

    1. Parsing audio and video data
    2. Automatic flow control

    While the PTO defined 1. as detecting start codes and building an index table..., TiVo did not dispute such term, the focus was on 2.

    Personally I don't know if the TiVo's clarification of 2. would do much to help E*, but the definition of 1. by the PTO clearly supports E*'s contention that the modifed DVRs no longer infringed the software claims.

    I think this is part of the reasons why most of the latest arguments before the en banc panel is whether E* violated the injunction even if the modified DVRs no longer infringed. E* got the best out of this reexamination, even though a final invalidation would have been better.

    Also with the latest clarification by TiVo, personally I think it would be very difficult to go after Verizon/ATT/MSFT on the same theories. The term "automatic flow control" was narrowed down by TiVo to the point that while it succeeded in overcoming the rejection, it also made this term so unusual an art it would be nearly impossible to map other manufactured DVR technologies on to it.
     
  11. Oct 6, 2010 #291 of 1139
    Greg Bimson

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    Wow. And if there aren't any gotchas in that re-exam, any argument about it is a completely empty discussion.
     
  12. Oct 6, 2010 #292 of 1139
    Greg Bimson

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    The problem here is the definition by the court. Just because there was a re-exam doesn't change the prosecution history of the patent. The moment the trial was final through the appeals process, infringement of that step was simply an analysis. Just because the PTO has looked at that part of the patent again doesn't change the court's definition.
     
  13. Oct 6, 2010 #293 of 1139
    Curtis52

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    Parsing is a fairly broad term. In one academic exercise the patent office may define it to mean a specific type of analysis to compare with another patent's more specific type of analysis. In another case, the patent office might define it to mean an entirely different type of parsing to more nearly compare TiVo's patent to that patent. The possibilities are endless.
     
  14. Oct 6, 2010 #294 of 1139
    jacmyoung

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    Reexaminations are part of the patent prosecution history.

    Case and point, had TiVo modified the claim terms to make the amended claims not substantially identical than the old ones, there would be no infringement liability from the past, even though the claims/patent are still valid and in force. If your theory is correct, this part of the law must not stand.

    An important part of the reexamination is to further clarify the claim terms, for example now the PTO made it clear that the term "parsing audio and video data" means "detecting start codes and build an index table of them..." such clarification is now part of the patent prosecution history, which the court must rely on in making its decision.
     
  15. Oct 6, 2010 #295 of 1139
    jacmyoung

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    Maybe, just in this case, the PTO took a position about that term squarely in E*'s corner. The question is, should the court ignore such PTO's position? If so, what is PTO for? The court might just grant the patent, then enforce it at the same time. We can save a lot of tax dollars for not having a PTO you know.
     
  16. Oct 6, 2010 #296 of 1139
    tivonomo

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    Maybe you should start looking for a precedent and let Folsom know that the claim construction in his court was all a waste of time.
     
  17. Oct 6, 2010 #297 of 1139
    jacmyoung

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    Never said his claim constructions were all waste of time, however I did demonstrate that he himself departed from his own claim construction on that particular term in his contempt ruling, but I will not waste my time to go back and dig up those posts.

    My point is, the questions asked by the en banc panel, while the 4th one is the most obvious, in reality all four of them take the position that the E* modified DVRs were likely no longer infringing. The reason is, E* themselves time after time agreed, if their modified DVRs still clearly infringed, they would be in contempt.

    Based on such clear position, the en banc panel's questions would have been meaningless had they agreed with TiVo that the modified DVRs clearly still infringed due to E*'s own concession. The court does not waste time argue on issues both sides have already conceded to.
     
  18. Oct 7, 2010 #298 of 1139
    harsh

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    Odd choice of terms using the word "terminated" versus "completed". Sounds awfully abrupt; as if somebody suddenly halted the proceedings as opposed to letting it running its course.
     
  19. Oct 7, 2010 #299 of 1139
    FTA Michael

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    TiVo's press release:

    TiVo Statement on Decision by United States Patent and Trademark Office

    ALVISO, CA -- (Marketwire) -- 10/06/2010 -- TiVo Inc. (NASDAQ: TIVO), the creator of and a leader in advanced television services including digital video recorders (DVRs) for consumers, content distributors and consumer electronics manufacturers, offered the following statement on the United States Patent and Trademark Office (PTO) decision.

    "We are pleased that the United States Patent and Trademark Office has reaffirmed the validity of all claims of the Time Warp Patent at issue in the second reexamination of the patent at the request of EchoStar. This decision by the PTO is final and not appealable by EchoStar. Today's decision further validates our IP and brings us closer to ending EchoStar's ongoing infringement. Moreover, we remain confident that the United States Court of Appeals for the Federal Circuit will uphold and enforce an injunction against EchoStar's ongoing willful infringement of the Time Warp Patent."

    http://pr.tivo.com/easyir/customrel...ersion=live&prid=670704&releasejsp=custom_150

    PS, A Radio Business Report article says that Dish had no immediate comment. http://www.rbr.com/tv-cable/28071.html
     
  20. Oct 7, 2010 #300 of 1139
    Hoosier205

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    Any estimates on how much this has cost Dish so far?
     
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