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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 9, 2010 #541 of 1139
    tivonomo

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    I believe he is arguing that E Texas should have caught that from the beginning. That therefore implies that E Texas is a horrible court. And that therefore the CAFC is more likely to overturn Folsom's decision.

    Now keep in mind, there is absolutely no other support for jacmyoung's view other than the E Texas court was found to make a bad error in this case and a prior one he mentioned. In only relates to TiVo in that jacmyoung's argument conflicts with E Texas and jacmyoung apparently thinks E Texas is a poor district court. Correct me if I am wrong, Jac.

    Regarding forum shopping, all lawyers do it. And yes ALL means ALL. The fact is both companies sell products in E Texas and that goes a long way in making it a justifiable court selection (although not necessarily the best).
     
  2. Nov 9, 2010 #542 of 1139
    jacmyoung

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    As usual you are wrong again:) This is why I said you should have gone back to read more before making any assumptions.

    I have said I have high regard for the E. TX court for making a name for itself and bringing in the revenues to its local communities, I wish my local officials can have similar spine in them.

    Having said that, you need to be able to push the envelop in order to make it happen. For years the E. TX court had the reputation of supporting patent trolls (not saying TiVo was one, TiVo is not) and they have the spine to do it even if it means to abuse its discretion or make patently erroneous decisions.

    The CAFC has issued more such orders than any other courts received combined to tell the E. TX court what they did were wrong, but the E. TX court continues to do so, by pushing the envelops.

    My above comments never tried to compare the MS case to the TiVo v. E* case, so stop wasting your time. The point and the only point is, the judges in the E. TX court are known to push the envelops to side with the patent owners, and the CAFC knows it.
     
  3. Nov 9, 2010 #543 of 1139
    spear61

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    The more recent case moves by the courts don't mean much in this case. The administrative branch of the courts changed the rules a few years ago to reduce "shopping" in areas where the combatants do not have a significant presence. This is why one sees moves out of East Texas. The Tivo/Dish battle goes way back before those rules were adopted and this judge has established himself as the fountain of court knowledge in this particular case.
     
  4. Nov 9, 2010 #544 of 1139
    tivonomo

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    That sounds familiar. Thanks
     
  5. Nov 9, 2010 #545 of 1139
    peak_reception

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    But that's exactly how he came across last time in oral arguments, as having formed his opinion already and not trying very hard to hide it. Contrast his confrontational exchanges with the TiVo lawyers, to his gentle approach with DISH lawyers whom he rarely interrupted. It's not that he liked the DISH lawyers more, it wasn't personal. He had simply decided that he agreed with them more, and it showed. But it didn't extend to the other judges; Judge Rader is still just one judge among nine (or is it seven?) who will decide this case, no matter how strongly he feels about it. It also make sense, at least to me, that he was key in posing the written questions for this round too, just as he was so central to the last proceeding before the CAFC.
     
  6. Nov 9, 2010 #546 of 1139
    jacmyoung

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    According to those attended the hearing, Judge Rader did not say a thing today, and Judge Mayer, one of the two sided with TiVo last time, removed himself from the panel. Looked to me the questions were likely asked by the other judges not in the initial panel.

    I will try to listen later today when I get the chance.
     
  7. Nov 9, 2010 #547 of 1139
    peak_reception

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    Judge Rader didn't say a single word?! Strange.

    "I will try to listen later today when I get the chance."

    Something tells me you'll find the chance. ;-)
     
  8. Nov 9, 2010 #548 of 1139
    tivonomo

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  9. Nov 9, 2010 #549 of 1139
  10. Nov 9, 2010 #550 of 1139
    jacmyoung

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    Actually reading the links above I don't even see the need to, but I will still likely listen to it for the fun of it.

    Remember what I said a few weeks ago? If E* could succeed in instilling enough doubts in the minds of the CAFC judges, they will be reflected in the type of questions the judges asked of TiVo and the street would react to that. See how the street reacted?

    We were discussing the PTO disclaimers filed by E* to the CAFC at that time, I agreed that the PTO issue might never be mentioned, but E* was still trying to put the issue in the judges’ heads. Certainly can’t say it was the PTO issue that had a play in this, but you cannot say my above comments were wrong.

    The same thing happened when Highdef asked me of the likely outcome of the PTO reexamination after reading TiVo’s response to the final rejection, I said based on what I read, odds were in TiVo’s favor that the PTO would certify the reexamination, a few days later it happened and the street reacted to that decision.

    Not trying to prove anything, I have been wrong many times before, but I don't go by fantasy, rather logical speculation.
     
  11. Nov 9, 2010 #551 of 1139
    peak_reception

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    The street reacted the same way after the last hearing. It sounded bad (Rader) so TiVo stock dropped. And yet, TiVo won.

    This one sounds bad for TiVo too (from first reports) but that doesn't necessarily mean a TiVo loss.

    We all get to wait another half a year or so to find out. How long has this case been going on now??
     
  12. Nov 9, 2010 #552 of 1139
    scooper

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    SHort answer - too long....
     
  13. Nov 9, 2010 #553 of 1139
    tivonomo

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    FYI, the most recent decision of an en banc, (Hyatt v Kappos) took exactly 4 months. So I would expect this en banc to be decided by mid March at the latest.
     
  14. Nov 9, 2010 #554 of 1139
    jacmyoung

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    Whether TiVo will win or E* will win or there will be a tie is irrelevant, it has nothing to do with the 11/2/09 hearing either, I said E* was trying to put more doubts in the judges’ heads and if successful the street would react to it, it did, end of the story.

    What had happened in the past or may happen in the future is irrelevant to my above comment.
     
  15. Nov 9, 2010 #555 of 1139
    jacmyoung

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    I am not saying it will not take very long, but let's not forget how the TiVo investors were so caught off guard by the quick en banc order on 5/4/10.
     
  16. Nov 9, 2010 #556 of 1139
    Curtis52

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    Hearing audio:

    Link
     
  17. Nov 9, 2010 #557 of 1139
    dgordo

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    The comments that the Judges were harder on TiVo counsel are interesting to me. I spoke to a guy who works at a fund that owns several million DISH shares. He was at the hearing and left concerned that the Judges were tougher on DISH. He was surprised to see the market reaction, especially because he believes the consensus is usually wrong. I guess we'll just have to wait and see.
     
  18. Nov 9, 2010 #558 of 1139
    jacmyoung

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    Have not listened to the audio so not able to comment on how hard were the judges on one party, but reading those news links, it seemed most Qs were directed at TiVo, could be why the reaction.

    What is the current consensus anyway? If the only consensus is more Qs were directed at TiVo, that will not point to its odds, the kind of Qs may reveal how the judges might be already thinking at that time.
     
  19. Nov 10, 2010 #559 of 1139
    jacmyoung

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    Well the audio is not complete, Mr. Waxman's argument was cut short and E*'s rebuttal is not there.

    But anyone having been sitting in that courtroom can reasonably talk away thinking the judges definitely had a lot of problems with TiVo's positions. There are just too many doubts from the judges about what Mr. Waxman said, that if you really go by the "fair ground for doubt" standard afforded to E*, the judges, having had seemingly so many not so satisfying responses from Mr. Waxman, would have difficulty to say with clear and convincing conviction that E* was in contempt, there are just too many doubts.

    Two things I found are relatively new, one, E* has finally begun to talk about abuse of discretion by the district court, even made a quick mention of the PTO, and TiVo no longer insists that even if the modified products are more than colorably different, contempt proceeding is still appropriate, in fact Mr. Waxman, when pressed, said yes a new action would be needed. This is very important, judges are trying to see if the party may concede to something so they can make a decision and blame it on that party. Once TiVo does not dispute that if the difference is more than colorable, the contempt proceeding is no longer appropiate, and a new action is needed, than all it takes the judges to do is to say there is more than colorable difference, TiVo loses. All the issues of ambiguity, notification, good faith and bad faith, all of them are no longer determining factors.

    In fact when the judges kept referring the modified DVRs as "new products" Mr. Waxman never even attempted to correct them. I think the street reaction was well justified. Come on, if you do not believe the modified DVRs are any different, at a minimum, make a point that they are NOT "new products." Like the above issue which TiVo did not dispute, they gave the judges the ticket to rule against them. Bad bad moves by TiVo.
     
  20. Nov 10, 2010 #560 of 1139
    Curtis52

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    Here is an interesting article on the case by a former U.S. Commissioner of patents and trademarks:

    Link
     
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