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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. Nov 8, 2010 #521 of 1139
    jacmyoung

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    Thank you for posting the rules, the mistake you made is you read the rule literally. If you noticed in every injunction, the order must specifically reference what
    kind of patent claims are at issue, i.e. referencing those documents, and maybe many other documented items, such as how to define a product, even often actually use the actual documents for reference if necessary. So your literal interpretation is not on point, what is on point is Rule 65(d) requires that the issues referenced in an injunction must ONLY refer to those already adjudicated/documented in the trial, not any other things not yet have arisen or adjudicated/documented.

    Therefore if later TiVo tried to use this injunction to impost limitations based on documents that by rule 65(d) could not be referenced, TiVo had gone beyond the scope of the order.

    As far as if TiVo can or cannot admit the injunction was unclear, of course they cannot, that was never the point. The point is, in answering that question, TiVo was forced to accept at least the assumption that the injunction was unclear, and subsequently gave a wrong answer to it. It is those answers given by the parties, not their own positions as far as whether the order is clear or whatever, will likely make the difference.
     
  2. Nov 8, 2010 #522 of 1139
    Greg Bimson

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    To anyone that might be passing through reading this thread, and specifically this post, I humbly submit I am at the end of explaining.

    This "on alternative argument" itself is so twisted that it cannot support itself. Either the first quote is correct or the second one is. And the first one is the Federal Rules of Civil Procedure, Rule 65(d), and once again, another "interpretation" is required.

    The injunction must stand on its own without reference to another document, such as the complaint or the decision. Sure, there can be parts in there that say because of infringement of claims X, Y and Z of patent 'NNN (and according to Rule 65(d), there'd better be), that the enjoined party must recall all products sold. But the injunction order cannot reference nor incorporate another document.

    And with that, I am done.
     
  3. Nov 8, 2010 #523 of 1139
    Curtis52

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    The only winning move is not to play.
     
  4. Nov 8, 2010 #524 of 1139
    jacmyoung

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    Because you said based on the rule 65(d) you quoted, an injunction may not reference any other documents, it is only a self-contained document, cannot mention (i.e. reference other documents).

    I have already told you you are wrong, all you need to do is read Judge Folsom’s injunctions, they referenced the TiVo patent by the patent numbers so people can go to the PTO site to read what it was for example, they also reference the DVRs by their model numbers so people can go to read the DVR model info to know what Judge Folsom was talking about. They also reference any OTHER DOCUMENTS necessary to make it very clear what the injunctions seek to do. If your interpretation were correct, Judge Folsom’s injunction would not be able to reference any other documents, no one would know what to do. He would have to attach a full copy of the PTO patent file with respect to all the documents related to the prosecution history of the TiVo’s patent, he would also have to attach copies of all the user manuals of the 8 named DVRs, and he would also have to attach all the court files related to the trial.

    Now you see why the 65(d) dose not prohibit the reference of “other documents” in the way you interpreted in the injunction? So what does it mean why it says the injunction may not refer to other documents? Need I repeat?

    BTW, don’t pick and choose what you may think are “other documents.” “Other documents” are not limited to a specific decision as you want to define it. Other documents mean any other documents that is not this piece of document that contains the wording of this injunction but nothing else. Obviously I hope you agree an injunction can, and must reference other documents, it cannot possibly contain all the other documents necessary to let people understand what it seeks to achieve.

    BTW, this is not the first time you said you are done, I hope you will be back.
     
  5. Nov 8, 2010 #525 of 1139
    jacmyoung

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    The only winninig move is to be able to come here and say "told you so.":) In that regard, I will be the first to admit I had plenty of people able to say to me, "told you so" in the past, and rightfully so.
     
  6. Nov 8, 2010 #526 of 1139
    James Long

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    Or keep comments so vague or rooted in fantasy that any outcome is the one predicted?

    Sometimes there are no winners.
     
  7. Nov 8, 2010 #527 of 1139
    jacmyoung

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    Show me any one of my recent points is fantasy I might be able to tell you why it is not:)

    Look the issue here is what is the correct answer to the question: Is a contempt finding proper when the injunction is not so clear?

    Greg knew TiVo's answer to that question was wrong, he just did not want to admit it, so instead of answering the question, he decided to go "off the subject" and throw a bunch of 65(d) at me, which had nothing to do with the answer of that question. He was just trying to muddy the issue and get away with not having to answer the question.

    If he can throw crap at me, I can show I am capable of getting back at him with my own crap. Another one of such "on the alternative argument" things:)
     
  8. Nov 8, 2010 #528 of 1139
    tivonomo

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    You've been proven to be fantasy by me and Greg. Your denial is remarkable.
     
  9. Nov 8, 2010 #529 of 1139
    jacmyoung

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    Come on Tivonomo, why do you always bring Greg into your sentences? I would be embarrased if I were Greg and constantly see my name side by side with yours:)
     
  10. Nov 8, 2010 #530 of 1139
    tivonomo

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    Why? Greg and I agree on just about every point. As he said, he is done trying to explain things to you. And Curtis is smart and refuses to even try. Is that not embarrassing for you?
     
  11. Nov 8, 2010 #531 of 1139
    tivonomo

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    Great movie. They don't make them like they used to...:)
     
  12. Nov 8, 2010 #532 of 1139
    jacmyoung

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    I don't ever read anywhere Greg and Curtis said they agree with you just about on every point, talk about fantasy.
     
  13. Nov 8, 2010 #533 of 1139
    tivonomo

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    That isn't what I said and you know that. Do you always replace the facts with your own fantasy? I agree with 99% of what Greg posts and we haven't disagreed significant point here. I never said Curtis and I agreed, but I liked his movie reference.
     
  14. Nov 8, 2010 #534 of 1139
    Doug Brott

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    Probably a good time to start discussing the topic and stop discussing each other ..

    Thanks guys.
     
  15. Nov 8, 2010 #535 of 1139
    jacmyoung

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    Today once again the appeals court issued an order to compel the E. TX court to move a case to a different court, because the district court clearly abused its discretion:

    http://www.cafc.uscourts.gov/images/stories/opinions-orders/2010-m944.11-8-10.1.pdf

    Now I know Tivonomo you have argued none of those are relevant. My point is, the CAFC does not have a great view for the E. TX court. Never had any district court been found to have abused its discretion and have been patently wrong so many times.

    Also this case is just a little more relevant to TiVo, because Microsoft, which is the petitioner in the above case, had also asked the E. TX court to move the TiVo v. ATT/MS case, and Judge Folsom had denied the request I believe, let's see what will come out of that petition at the CAFC.
     
  16. Nov 9, 2010 #536 of 1139
    peak_reception

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    Isn't this supposed to be Oral Arguments Day?

    jac, you seem very hung up on that question you post above here. I know, I know, it's not you that posed the question, it was the CAFC. However, so long as we're speculating, remember back to the last oral arguments and how they were dominated by Judge Rader. In fact he was basically the only one who said anything at all. A peep or murmur from the other two and that was it. Rader was dominant! Any yet... Rader was also a minority of one against the 2 judge majority who ruled in favor of TiVo.

    In view of that, and considering how strongly Judge Rader apparently feels about this case, does it not make sense that he would also have his hands all over the questions presented by the en-banc panel for oral arguments this time around? And the other judges, perhaps no less inclined than the two last time to side with him, are nonetheless content to let him have his best shot at laying groundwork for a strong DISH presentation. After all, what is the harm in testing the previous judgment in TiVo's favor to see if it withstands maximum scrutiny or not? And in fact, isn't that the whole point of an appeal, to make sure that the District Court got it right the first time?

    So an unbuttoned Rader (or mostly Rader, just as in the oral arguments last time) whips up a list of questions designed to cut right to the heart of whether previous judgments were correct or not. And how best to do that? Ask the toughest possible questions to TiVo and see how they handle them. The one you focus on so much is just a specimen of this approach.

    After all, Rader was just as passionate in the last oral arguments (another fact you focus on excessively) and it didn't sway the other two judges who showed no outward passion at all one way or the other.
    Why should it be any different this time?

    My speculation of course is that Rader is the author of that question positing an unclear injunction. Not a bad bet given how much of the show he ran the last time out. It will interesting to see how much 'in charge' he is this time too, but let's not forget that it didn't garner him any other support before and may not this time either, no matter how strongly he feels about it.
     
  17. Nov 9, 2010 #537 of 1139
    jacmyoung

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    As compelling as your speculation is, I say yours is based on emotion, nothing wrong with that. Without passion, why even live?

    But I think we can also agree the court should do its best to remove emotion out of it and use logic. So to keep the logic flowing, one may argue that since Judge Rader has clearly got the answers to those questions figured out already, one can speculate that the questions are likely asked by those judges who have not openly expressed their strong views.

    You would almost have to conclude that Judge Rader is the biggest #$%^:) to have already let the whole world known he knows the answers to those questions clearly and unequivocally, only to want to find out what the answers are again?

    I am not saying I know who asked the Qs, it is of course all speculation.
     
  18. Nov 9, 2010 #538 of 1139
    MCSuckaDJ

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    Hold on a second there, toughguy. Those are not equivalent circumstances. In the Microsoft case, M$ successfully argued that:
    1) Allvoice had nothing more than a P.O. Box in E Texas, and was essentially forum shopping, and,
    2) M$ wanted to litigate on their home turf, where their witnesses and attorneys would be least-inconvenienced by participating in a trial.

    However, E* is arguing that:
    1) TiVo has nothing more than a P.O. Box in E Texas, and is essentially forum shopping, and,
    2) E* has nothing more than a P.O. Box in Delaware, and is also essentially forum shopping.

    If E* had requested to move venue to the 10th district and been turned down, the CAFC would be right in overturning the decision, but the CAFC cannot allow the same case to spin up in two different districts just because of the animosity you perceive they have against one of them.
     
  19. Nov 9, 2010 #539 of 1139
    scooper

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    Does Tivo even HAVE a PO box in East Texas ? This was a case forum shopping if there ever was one...
     
  20. Nov 9, 2010 #540 of 1139
    MCSuckaDJ

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    I concur. But the CAFC cannot reward E* for engaging in the same bad behavior as Tivo.
     
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