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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. May 14, 2010 #21 of 1139
    Paul Secic

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    Charlie really needs to settle this and move on! Or Buy Tivo. I'm starting to think he's listening to his legal team too much.
     
  2. May 14, 2010 #22 of 1139
    jacmyoung

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    If you had read our discussions in the past few days, Charlie has already made an offer to TiVo.
     
  3. May 14, 2010 #23 of 1139
    phrelin

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    Northern...
    "It's only money." - Charlie Ergen


    Well, when justice moves at this speed, delay really is on Charlie's side. As you may remember I keep a record of posts on threads on this subject (only the ones I think are worth looking back at as many with only a few posts offer no information). It looks like this:

    [​IMG]

    We're now over six years into this and over four years after the jury verdict. The listed boxes are fully depreciated. While Dish has paid TiVo some of that "it's only money" and likely will have to pay some more "it's only money", given enough time Charlie will end up with all MPEG4 satellite feeds, no listed boxes, and no boxes designed anything like the listed boxes.

    IMHO this granting of an en banc hearing has to be a big win in Charlie's mind. And in the unlikely event (in his mind) that the ViP's are found to infringe, he'll pay licensing fees or buy TiVo as "it's only money.":rolleyes:
     
  4. May 14, 2010 #24 of 1139
    jacmyoung

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    The injunction may be ambiguous only if you listen to what TiVo's interpretation is. At the time TiVo proposed the injunction, TiVo said it only sought to stop the infringement, no more, no less. It also instructed the court on what step E* might take to comply with the injunction, by saying, E* could disable the infringing DVR functions of the DVRs by a software download.

    Now TiVo is saying E* could not just download a software to disable the infringing DVR functions, E* must disable any DVR functions, whether the DVRs still infringe or not.

    Judge Rader was the only one of the four judges caught the contradiction in TiVo's statements. Even E*'s lawyer during the oral argument did not make a point of the above, Judge Rader noticed the above after asking TiVo's lawyer a few questions, then caught the above several TiVo's statements buried in the files.

    IMHO, E* was lucky. There are of course other reasons, but still E* was lucky.
     
  5. May 14, 2010 #25 of 1139
    James Long

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    I believe jacmyoung is referring to "Invester's Village" ... a discussion site that hosts a Tivo forum where the issue is also discussed.
     
  6. May 14, 2010 #26 of 1139
    phrelin

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    If it does have a "profound impact on innovation", of course the loser will appeal to the Supreme Court which might actually take it up, particularly if it does have a "profound impact on innovation.":sure:
     
  7. May 14, 2010 #27 of 1139
    phrelin

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    By the way, just to get it clear here, in the quarterly call according to Reuters:
    And, of course, today after the markets closed we have a wry comment in a Forbes article TiVo Plummets On Patent Case Review:
     
  8. May 14, 2010 #28 of 1139
    James Long

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    Tivo down 40% with a volume of 37,240,709 (at close)
    DISH up 4.28% with a volume of 7,898,245

    For Tivo this is a correction back to the prices that were common before the big volume jump up in price at the beginning of March. For DISH it doesn't seem to have an impact.

    It certainly was a better day for DISH than Tivo.
     
  9. May 14, 2010 #29 of 1139
    dgordo

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    I thought stock talk wasn't allowed here? :)
     
  10. May 14, 2010 #30 of 1139
    James Long

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    We'll keep it limited to those two posts, with the second simply illustrating the first.
    (At this point it is historical data. No advice to buy/sell/hold/keep/jump off a bridge/etc.
    Also no attempt to manipulate the market or predict what principals are doing.)
     
  11. May 14, 2010 #31 of 1139
    jacmyoung

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    I did not want to go too far off the topic, but since we are on it, many TiVo individual investors are on that board, some of them also post here. For obvious reasons most of them did not like me a bit:) But some of them went out of their ways to attack me. Which led to my previous comment about "karma". Believe it or not, again that comment was not mine, I simply borrowed it from them. Hopefully we all learned from our own mistakes. This case is clearly not over.

    Now back to the topic, I want to note that the number of issues listed in the en banc order, all of them were mentioned by me from the very beginning of the contempt proceeding, that was back in the mid 2008. Some of the "old timers" here should remember the following terms:

    1) Newly accused device against the adjudged infringing device,
    2) burden of proof,
    3) fair ground of doubt,
    4) more than colorable differences,
    5) substantial open issues, and
    6) whether the injunction is ambiguous.

    The above issues had been argued so many times here they became circular and almost considered spam. Not that I want to resurrect them, I am sick of talking about them too, but it is interesting to know that our en banc panel is now asking the very same questions for the first time, from the court perspective, precisely two years after we started debating such issues.
     
  12. May 14, 2010 #32 of 1139
    Slamminc11

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    and I continue to watch tv using my Dish DVR and not something made by tivo!
     
  13. May 14, 2010 #33 of 1139
    phrelin

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    Actually, as I noted Dish's comment above:
    I thought to myself, this actually could get interesting. Maybe not, maybe we'll end up with a vary narrow, same old stuff, ruling. But they really have opened up the can of worms at the outset.
     
  14. May 14, 2010 #34 of 1139
    jacmyoung

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    BTW, I almost forgot to mention another thing. I did not want to bring it to the open before the en banc panel made its decision. Now it is appropriate.

    Recall a day or two ago Voyager6 posted his theory of the possibility that Judge Folsom had already considered the E* new designs (the two new options pending pre-approval) to be non-infringing but wanted to wait for the en banc panel? I somewhat dismissed his theory because the timing was wrong.

    Now the en banc order is in, I can talk about it. Voyager6's theory is a valid one, because if Judge Folsom has already decided that the two new options should be pre-approved for implementation, he would still not want to do so because in the event that the en banc granted the petition, meaning there is the possibility that his own ruling and injunction could be overturned, then approving E*'s new designs for implementation would have placed unnecessary burden on E* because implementing new software is a messy business, involving a lot of man-hour, possible backlash from the customers, bug fixes, we know this too well.

    It would be an undue burden on E* if later the en banc panel overturns his ruling and order. So here is a possibility why Judge Folsom may not want to make any decision on the pre-approval issue, even if in the event that he had already decided the new designs were non-infringing. The best approach is to continue to stay his own injunction until further notice.
     
  15. May 14, 2010 #35 of 1139
    am7crew

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    I love how people call the CEO's of these 2 companies by they're first names as if they know them lol
     
  16. May 14, 2010 #36 of 1139
    jacmyoung

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    I hate to burst your bubble, or should I say burst E*'s bubble:)

    The fact the en banc panel is asking the exact same questions that we J6Ps debated two years ago, is proof that there is nothing new here, there will be no profound impact, just to maintain the status quo, that is if the en banc panel overturns Judge Folsom's ruling and order.

    The court in a civil case always wants to encourage settlement, sometimes it goes out of its own way to do so, exercising its maximum discretion, depending on which party it believes is unreasonably "stubborn". But at some point when the court exhausts its leverage and its discretion is limited in such effort, it must get back on track with the law, and only the law.

    For two years, both the district court, and the appeals court merits panel majority, might have done just that, but they failed to get Charlie to change his mind. Now the en banc panel must go back to visit the law. This is not to say Charlie will win, just that the court has realized its effort to coax a settlement had failed, so it now has to go back to the basics.
     
  17. May 14, 2010 #37 of 1139
    scooper

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    You can't force somebody to settle if they don't want to...

    And when they are a billionaire who really doesn't have to answer to anybody else ...

    I think that one salient fact is one that alot of the Tivo posters fail to grasp when they come here, and try to bring up the stockholders putting pressure on Charles Ergen. Of course, most of us know it is an empty point.
     
  18. May 14, 2010 #38 of 1139
    James Long

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    Well if there is nothing new to discuss I suppose we could just wait in silence until something happens many months from now. :)

    True that. People forget who the major stockholder is. It isn't some company who hired a CEO from some other company. The lead owners of DISH/SATS started the company and remain in daily control. We're talking a Bill Gates type of person, although in DISH's case, the creator is still running the show.
     
  19. May 14, 2010 #39 of 1139
    dgordo

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    What is most interesting to me is that the court has asked that the parties brief 4 questions of law that have previously been answered by this very court in other cases. Maybe they forgot?
     
  20. May 14, 2010 #40 of 1139
    James Long

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    Perhaps they want to revisit their previous decisions from another angle?
     
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