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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. Oct 7, 2010 #301 of 1139
    dgordo

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    The court awarded damages are easy to figure. Despite the lack of results in court, DISH has expensive lawyers, assume an average of $250 per hour. I would guess between the trial, all the appeals, the PTO work, etc that 5000 billable hours would not be a stretch and may even be low.
     
  2. Oct 7, 2010 #302 of 1139
    FarmerBob

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    Charlie should have bought TiVo last Spring when they were ripe for a take over. Now once again we're going to pay for his ineptitude.
     
  3. Oct 7, 2010 #303 of 1139
    phrelin

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    Northern...
    Actually, IMHO Charlie is only attempting to delay as long as possible. The PTO stuff was an interesting sideshow that offered some possibility for confusing everything. Now for the en banc decision followed by an appeal to the Supreme Court.

    If the en banc decision is split and includes two well-worded opinions, the Supreme Court might actually take it up which could delay a final decision another however many months.

    Regarding costs, I'll point out again that in February Dish instituted the following pricing policy:

    [​IMG]

    As we know, only certain DVR models are covered by this case in a listing. An old listed 508 (solo DVR) costs the user $10 a month. An unlisted ViP612 costs the user $10 a month. Dish has almost no costs associated with an old 508 - they are fully depreciated. Dish could pay attorneys and TiVo $9 a month and still be covering all the costs for the 508. And when the 508 goes belly up, most frequently it will be replaced by an unlisted box.

    Costs are not relevant to Charlie, time is. He just needs time to replace as many of the listed boxes as possible before a final decision.

    If and when all the listed boxes are replaced TiVo will get no ongoing revenue from the jury decision. At that point, was it much of a win for TiVo?
     
  4. Oct 7, 2010 #304 of 1139
    James Long

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    Tivo litigation accrual: $454.4 million at the end of June 2010



    Tivo has a poison pill in place that makes taking them over very expensive.
     
  5. Oct 7, 2010 #305 of 1139
    jacmyoung

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    This is of course to assume the DVR fees actually were there to pay fines. I don't think you had ever provided any proof to link the two.

    But since no one is refuting your theory, I say it is not a bad one. If true, here is one more evidence Charlie will not quit the fight, he'd rather pay to fight to the end.

    My question is, if he ends up not to pay TiVo, where do you think those fees will go? Another big dividend?:)
     
  6. Oct 7, 2010 #306 of 1139
    phrelin

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    To Fox and Disney.:sure:
     
  7. Oct 7, 2010 #307 of 1139
    rocatman

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    For clarification, Dish argued during the contempt proceedings that its revised software no longer infringed because its software no longer parsed audio and video data. This is now defined as meaning detecting start codes and building an index table based on the revised Time Warp Patent that the PTO just accepted. In finding Dish in contempt, Judge Folsom used a much broader definition for parsing audio and video data. Now that contempt ruling is being reviewed by the appeals court.
     
  8. Oct 7, 2010 #308 of 1139
    Greg Bimson

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    I thought the PTO simply accepted the claims as-is. More on that in a moment.
    In finding Dish Network in contempt, Judge Folsom used the only definition available to him during the entire proceeding. Because "this is now defined as meaning start codes and building an index table" doesn't change that the day it was argued in front of Judge Folsom, it wasn't the case. It's like arguing that I got a speeding ticket for going 64 in a 55 two years ago and that stretch of road is now 65 mph. Just because a rule may have been changed doesn't mean those rules are applied retroactively.

    And it still remains to be seen what the PTO accepted.
     
  9. Oct 7, 2010 #309 of 1139
    Curtis52

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    Huh? The lowly USPTO examiner never said that is the only definition. He only used that definition for that particular narrow academic exercise. Anyway, he isn't the final arbiter of definitions.
     
  10. Oct 7, 2010 #310 of 1139
    Greg Bimson

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    That's why I said at the very end, "And it still remains to be seen what the PTO accepted." We don't know anything, yet, let alone if a definition has changed.
     
  11. Oct 7, 2010 #311 of 1139
    jacmyoung

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    No one is even saying the PTO has changed anything, only clarified a few claim terms. The term "parsing audio and video data" had never been defined, either by the PTO or by the court, until the PTO's recent actions.

    The only term that has been defined by the court in the past was the term "parse," but not the "parsing audio and video data."

    This is new, part of the "new theories" E* and Judge Rader were talking about, which require a new action to sort out, not in a summary contempt action.
     
  12. Oct 7, 2010 #312 of 1139
    Greg Bimson

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    Never defined? Really? Judge Folsom didn't hold Markman hearings prior to the trial?
    I think you need to look at the transcript of the Markman hearings.
     
  13. Oct 7, 2010 #313 of 1139
    jacmyoung

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    He defined "parsing audio and video data from the broadcast data" as "analyzing audio and video data from the broadcast data." As I said the only term he actually defined was the word "parse."

    Now we have on the PTO patent prosecution history record that the PTO defines the term "parsing audio and video data" to mean "detecting (i.e. analyzing) start codes and building an index table..."


    As far as a highway analogy goes, the following will be a better one, a hypothetical one of course:

    Say you are a truck driver, driving a red semi truck with a license plate “E* v. TiVO.” You passed a scale on the highway without stopping, you then were stopped by a highway patrol car and cited for “driving a loaded truck without stopping at the scale.” You were then warned “not to ever drive the same truck through the same scale without stopping next time, if you do you will be cited again.”

    The next day you drove the same truck pass the same scale without stopping, the same officer stopped you, gave you another citation. You go to the court and tell the judge, well I have no problem paying the first fine, but not the second, because the second time my truck was not loaded, and the law only requires a loaded truck to stop at the scale.
     
  14. Oct 7, 2010 #314 of 1139
    Greg Bimson

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    No, if you look at what you wrote, he defined the entire element of the step within the claim. "Parse" wasn't defined. "Parsing audio and video data" wasn't defined.
    Do we? No one seems to be able to find it.
     
  15. Oct 7, 2010 #315 of 1139
    jacmyoung

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    So you agree with me he did not define those terms?

    Go read the PTO's Office Actions, pay close attention to the "examiner's notes" with emphases added. No one is even questioning me on this one, only you.
     
  16. Oct 7, 2010 #316 of 1139
    Greg Bimson

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    Judge Folsom defined the only terms necessary.

    But even with the "examiner's notes", we only know that the re-exam was terminated, and we know nothing regarding the status of those notes.
     
  17. Oct 7, 2010 #317 of 1139
    Curtis52

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    As was the Court’s analysis of the term “parses” in the context of claims 1 and 32, the Court similarly finds that “parse” as it is used in claims 31 and 61 means “analyzes.” These terms are recited clearly by claims 31 and 61 and understood by persons of ordinary skill in the art. See ’389 patent at cols. 14:55-58, 18:5-8. This definition is consistent with the use of the term in claims 31 and 61 and the context of the specification. See, e.g., ’389 patent at col. 4:23-33 & Fig. 3 (describing the analysis of interleaved video and audio streams from an incoming MPEG stream).

    Therefore, the court defines “parses video and audio data from said broadcast
    data” as “analyzes video and audio data from the broadcast data.”
     
  18. Oct 7, 2010 #318 of 1139
    tivonomo

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    Add me to the list of those questioning you.

    The examiner was defining the term in relation to the other patents... essentially doing a mapping of what audio and video data are. "detecting (i.e. analyzing) start codes and building an index table..."

    Meanwhile, Folsom did define audio and video data as exactly that. One could insert any source of audio and video data. The only requirement is that a parsing of the data be done. Start codes and index table parsing would be one example.

    But again, you have to look at the examiner's notes in context of the combination of patents being discussed. It wouldn't make sense to look at a different definition of parsing data that was not relevant for the analysis. And of course, the only thing that might matter to any judge going forward is that all claims were upheld as written. E* is bound by Folsom's broader definition for the remainder of this legal battle.
     
  19. Oct 7, 2010 #319 of 1139
    James Long

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    DISH needs a firm definition of what the patent means. Otherwise when they work around what they think it means (legally permitted to avoid infringement) they don't waste time and development just to be told that the definition changed from the last time they were in court.

    Does this PTO action give DISH a clear definition? Did the court? Are the definitions equal or competing? Which definition does DISH have to satisfy?
     
  20. Oct 7, 2010 #320 of 1139
    tivonomo

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    The court definied the patent claims and the jury determined infringement. Ultimately the examiner has no authority to have the final say on defining the patent because any decision he made could be appealed by TiVo. Meanwhile, the first trip to the CAFC finalized the definition of the claims that will be applied in the TiVo vs E* case through to its ultimate end.
     
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