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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 #41 of 1139
    jacmyoung

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    We are not discussing those "age old" issues, I even said I was sick of them myself:)

    The individual TiVo investors are trying to get rich quick on the court rulings. In the case of TiVo, it is mostly owned by institutional investors (over 90%), therefore the individual investors are basically playing against the big guys.

    But there were signs, before this en banc order, we knew many TiVo insiders sold large percentages of their holdings. You never read Charlie selling his stakes in large numbers based on any kind of news about his companies.
     
  2. May 14, 2010 #42 of 1139
    jacmyoung

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    What were the answers?

    The only thing I can say is, the higher court is more likely to maintain the status quo if they can, because the law, if not amended by the Congress, stays the same. Since Judge Folsom's ruling is against the status quo, the odds are against TiVo.
     
  3. May 14, 2010 #43 of 1139
    scooper

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    Or maybe asking Dish/Tivo what is making this case unique that previous remedies won't work.
     
  4. May 14, 2010 #44 of 1139
    jacmyoung

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    Instead of looking at the questions asked by the en banc panel, it maybe a good idea to consider what questions they did not ask.

    An obvious question that is absent in the en banc order is, what should be the standards used to deterimne colorable difference and infringement issues? Another maybe whether the reliance on the doctrine of equivalents standard is appropriate in this case? Because this question was asked by the professors.

    The fact those questions were not even raised, implies that the en banc panel (or at least the majority of them) did not even see them as valid issues in this review, which may lead to the conclusion that they had already agreed with Judge Rader that the modified DVRs were likely no longer infringing. If so the only questions left to answer were the above four.
     
  5. May 14, 2010 #45 of 1139
    FarmerBob

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  6. May 15, 2010 #46 of 1139
    jacmyoung

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    "We are disappointed that we do not yet have finality in this case despite years of litigation but we remain confident that the Federal Circuit's ruling in our favor will be reaffirmed," TiVo said in a statement.

    I just read this TiVo's statement, am I correct that TiVo should have said "the district court's ruling" instead of "the Federal Circuit's ruling" because "the Federal Circuit's ruling" has been vacated, i.e. no longer exists?
     
  7. May 15, 2010 #47 of 1139
    phrelin

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    I think they mean the vacated ruling - this was a PR piece for shareholder protection saying "hey we already won here before", not a note to the attorneys.

    Now there will be about 4 months of filing briefs, probably a minimum of 6 months to a decision. That decision can be appealed to the Supreme Court.

    And I'm still puzzling over the language "Is it proper for a district court to hold an enjoined party in contempt where there is a substantial question as to whether the injunction is ambiguous in scope?" What ambiguity in scope in the injunction language exists as a substantial question?

    This isn't a discussion of a possible hypothetical substantial question, but rather asserts that there is a substantial question which existence they aren't asking to be discussed. Are they accepting as a given Judge Rader's pointing to the contradiction in TiVo's statements about what constitutes disabling? Are they preparing to accept a reasonable argument that contempt is not appropriate under these circumstances?

    Despite the relationship to the first three issues, this "feels" as if it is a question apart.
     
  8. May 15, 2010 #48 of 1139
    jacmyoung

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    To answer your good question, we will have to revisit the "age old" question again, that can get us in trouble, but I think it is worth the risk:)

    The goal of an injunction against infringement, and the only goal, is to prevent further infringement. Therefore it must be first assumed, when one reads the injunction, that the above rule applies. An infirnger subject to such injunction must be given the benefit of such interpretation, because this is the law.

    Where the injunction might be interpreted as to prohibit an act even if such act is non-infringing, the appeals court had said, in such case, the court must nevertheless interpret such injunction in a way that conforms to the law. This is almost the same as saying if the court has to twist the words of the injunction to meet the above standard, it will have to do so.

    Because of the above reasons, the only saving grace for the court is to somehow argue that the injunction is ambiguous. Because it cannot say it is trying to twist the words of the injunction (it will be a riot), only that the words of the injunction are not clear enough.

    There are plenty of reasons to call Judge Folsom's injunction ambiguous. It first defined the 8 nameds DVRs "the Infringing Products", all the prohibitions in the injunction referred to "the Infringing Products". If the injunction had meant to include the modified products that might not be infringing, the injunction should have made it clear to include such non-infringing products, but it did not.

    The injunction called for the disabling of "the DVR functionalities", not "any DVR functionalities". When the infringer interpreted "the DVR functionalities" to mean the DVR functions that were adjudged to infringe during the trial, he must be given the benefit of such interpretation, because the injunction did not make it clear that it meant to disable any possible future DVR functions, whether they infringe or not.

    The injunction also prohibited "the DVR fucntions" from being reinstalled back onto "the Infringing Proudcts", once "the DVR functions" were disabled. Had the injunction meant to disable "any DVR functions" regardless, such additional requirement would have been unnecessary, because as long as no DVR functions could be used, why the injunction tried to make a point that those DVR functions could not be reinstalled? The implication was, other DVR functions might be fine, as long as they were not "the DVR functions" that infringed.

    As for the "all means all", disable all storage and playback from the hard drive..."of the Infringing Proudcts", continued to show that it was limited to the products that infringed.

    Of course the TiVo folks had always called the above interpretation "tortured interpretation":) Unfortunately, if the above "tortured interpretation" is the only interpretation that can result in conforming to the law, the appeals court had said, such "tortured interpretation" will do:)

    TiVo of course argues that if the injunction was not so clear to E*, E* should have appealed. But E* did not have to, if the injunction was not clear, it could not be in force, period, nowhere had the court ever said an ambiguous order can be effective if the wording of the order is not appealed.
     
  9. May 15, 2010 #49 of 1139
    James Long

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    The way this case is going, I'd consider that as additive. ie: Minimum 10 months before a decision.

    That is a good question. The problem I see with the injunction was apparently not raised in prior appeals. It is too broad. Instead of saying "remove that infringing process" it says "remove the entire function". Barring the ability to have the function even if a non-infringing process is used. This ambiguity was raised in later rounds but not when DISH appealed the initial decision.

    The ambiguity raised by DISH when they failed to disable their DVRs was what disabling means. DISH claimed they disabled their DVRs and installed new software that did not infringe. For most of us "disabled" for a few minutes to reboot doesn't match the wording of the injunction. Other than the clerical errors, is there ambiguity remaining?

    This is a messy case. It is a shame that we all have jobs or obligations that keep us from solving it for the courts. We would have had an answer years ago ... two answers actually - one where Tivo wins and one where DISH wins. :)
     
  10. May 15, 2010 #50 of 1139
    jacmyoung

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    Plenty of it as I pointed out. No matter how unambiguous one believes the injunction is saying, as long as the other guy has interpreted it differently, the question becomes, how much weight should the court give to the other guy's interpretation? It just so happens that the court also says, if the other guy happens to be the one subject to the injunction, the court must rule in the way most favorable to him.
     
  11. May 15, 2010 #51 of 1139
    phrelin

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    My answer is where both "win" - order Dish to pay a license fee for continued use of the listed DVRs based on the average license fee paid by others plus a 50% penalty.

    Dish's problem would be to figure out how to get folks to replace those products. Tivo's problem would be whether to file a new lawsuit against Dish and Echostar on the unlisted DVRs.
     
  12. May 15, 2010 #52 of 1139
    Greg Bimson

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    That is not exactly the standard. The problem is that the interpretation of the injunction by DISH/SATS holds no plausibility, and I'm not going into that again.

    Truthfully, I think this is being revisited en banc because they need real case law to deal with this situation. And as I've said time and time again, so far by following case law DISH/SATS has been found in contempt. The only way I believe the finding of contempt is overturned is if the bench of the CAFC makes a precedential ruling and creates new case law, a la KSM.
     
  13. May 15, 2010 #53 of 1139
    jacmyoung

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    We will have to continue to agree to disagree.
     
  14. May 15, 2010 #54 of 1139
    jacmyoung

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    I just want to point out that the above is not a "both win", rather a "TiVo-only win".

    I'd say a win/win solution is what Charlie had offerred, $120M a year lump sum, TiVo allows E*/DISH to use its name and technology. I believe Charlie wanted an exclusive deal, others may disagree, but if it is up to me a non-exclusive deal would be fine, but that was before the en banc order.

    With the en banc order, Charlie's position is much stronger, I would not be surprised if he takes back his offer. Though I think an exclusive $120M lump sum deal is still a reasonable deal for both.

    Let's not forget, with the en banc review in place, it will take another 6 months minimum, most likely more than that to reach a resolution, meanwhile the next PTO action should come sooner. As I had pointed out, TiVo had already allowed the PTO to certify the 8 new claims in the event the PTO continues to reject the two software claims, if the PTO agrees with TiVo, the software claims will be formally invalidated, without any appeal from TiVo.

    I don't think TiVo wants to wait for that possibility before considering any offer from Charlie. On the other hand my bet is with this en banc order, he will wait out longer to see what the PTO is going to do. If the PTO does the above, he would not have to do anything, this case would be gone forever, E* would not owe TiVo anything at all because there was never any infringement in the first place. He would not get that $105M back though.
     
  15. May 15, 2010 #55 of 1139
    Paul Secic

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    Oh OK.
     
  16. May 15, 2010 #56 of 1139
    Jhon69

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    Personally I think Tivo is suing Dish for a license fee so they can try to find out how Dish made such a great DVR which the 625 is.Dish's 625 can operate 2 TVs,has a 2 hour pause with 2-120 minute live buffers.PIP with splitscreen(you can view what's on tuner1 and 2),plus 150 hour recording capacity.:D
     
  17. May 15, 2010 #57 of 1139
    jacmyoung

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    Earlier I said what may be important is to ask what questions the en banc panel did not ask.

    Another obvious question that is missing is whether it is proper for the court to require pre-approval of any design around. As far as we know, this is the first time such pre-approval requirement is included in an injunction. As such it deserves the attention and a decision so the world may get the direction on this issue in the future.

    By not even touching on this issue, the signal is that such requirement has no importance or is moot, if so the amended injunction will likely be vacated for that provision alone. A new injunction will be required even if Judge Folsom's ruling is reaffirmed.
     
  18. May 15, 2010 #58 of 1139
    FogCutter

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    OK, let's say Charlie loses and is pinned to the wall without further appeal -- at the risk of sounding self-centered -- what happens to my 3 DVRs? Do they come and get them? Do they quit working? Does someone charge me more?
     
  19. May 15, 2010 #59 of 1139
    phrelin

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    It's all speculation, of course, but I think the February 1, 2010 rate structure is a start to covering any costs Dish might have to pay for the listed devices.

    Just my opinion.
     
  20. May 15, 2010 #60 of 1139
    scooper

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    Well - first off - based on past performance, most of us would be greatly surprised to hear anything from the En Banc review for 3 months minimum, more likely 6-12 months - and longer wouldn't be too long a stretch.

    If it goes against Dish - they still have an appeal application to the SCOTUS - probably would be denied.

    Then only if Dish /Echostar could not reach a licensing agreement with Tivo - and only then - would you see the "Infringing Products" DVR function disabled..

    At least this is how I see it....
     
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