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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 10, 2010 #581 of 1139
    jacmyoung

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    It is, if TiVo demands that E* must clarify any unclear issues FIRST or else. Because if E* had never had any unclear issues with what they believed was what the injunction said, you cannot possibly demand that E* must FIRST seek clarification, when the other interpretation TiVo or Judge Folsom provided to E* was AFTER the fact.

    Now had TiVo and Judge Folsom told E* BEFORE the fact, say in 2006, that you must disable the DVR functions on those DVRs, whether they were infringing, or not, regardless how later you might modify them, then you can say, if E* did not agree, why didn't you appeal that.

    But that was not what happened, in fact as Judge Rader said, TiVo said in 2006 the injunction only sought to stop infringement, "nothing more, nothing less." TiVo also told Judge Folsom and E* that E* could comply with the injunction by disabling "the infringing DVR functions through a satellite download." For such reasons, Judge Rader concluded that at that time, any attorney could not possibly even have interpreted the injunction other than how E*'s attorney had interpreted.
     
  2. Nov 10, 2010 #582 of 1139
    jacmyoung

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    There cannot be a tie because there can only be an odd number of judges on the panel.
     
  3. Nov 10, 2010 #583 of 1139
    jacmyoung

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    What are you talking about? Judge Rader said at the time (2006) the only reasonable intepretation was E*'s interpretation.
     
  4. Nov 10, 2010 #584 of 1139
    tivonomo

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    Please don't spread misinformation on this board anymore. Thanks.
     
  5. Nov 10, 2010 #585 of 1139
    tivonomo

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    Yet 3 unreasonable judges disagreed?
     
  6. Nov 10, 2010 #586 of 1139
    jacmyoung

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    Why don't you quote us, I know you like to quote. I am not expert, you are.
     
  7. Nov 10, 2010 #587 of 1139
    jacmyoung

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    No one said the three judges were unreasonable, they only did not care what TiVo said back in 2006, and what TiVo said in 2009, which are different.

    As Judge Rader said, if you are willing to go back to read the court papers in 2006 what TiVo said what its injunction meant, you could only read the injunction in the way E* interpreted back in 2006 and 2007, but if you refuse to do that, then only insist on the so called "plain language" of the order, yes you can agree with TiVo's current interpretation, which is different than that of 2006.

    But, even if you can agree with TiVo, you may still not able to say E*'s interpretion back in 2006 and 2007 was not reasonable. This much TiVo does not even dispute in the latest oral argument. By making the statement that "E* can only win if E*'s interpretation is the only reasonable one," is to say that E*'s interpretation is not the only reasonable one, which means E*'s interpretation may still be a reasonable one just that there is another reasonable interpretation.

    As such if an order can have more than one reasonable interpretation, it is unclear, therefore cannot be enforced.

    But let me make this clear again, the above argument is no longer necessary, because Mr. Waxman also agreed that if the difference is more than colorable, the contempt proceeding is not proper, a new action would be needed. Therefore if the judges find the difference more than colorable, they can vacate the district order and remand for a new trial, end of the story, TiVo cannot complain, because TiVo has agreed to such outcome.
     
  8. Nov 10, 2010 #588 of 1139
    HiDefGator

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    a new trial, which I believe will be ordered, is not necessarily good for Dish. The jury in the new trial may also find infringement of the workaround and decide on a higher monthly rate at the same time. Dish may go from owing $2.25 a month today to owing $4 a month a year from now. And you can bet the new injunction will be very clear.
     
  9. Nov 10, 2010 #589 of 1139
    tivonomo

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    Huh? You stated that there must be an odd number of judges on the en banc. You made that up. I just looked at the en banc rules this morning.
     
  10. Nov 10, 2010 #590 of 1139
    tivonomo

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    One could even argue a lost profit damages approach which would be even more severe than that. Look at TiVo's sanction argument (that was rejected by Folsom in that situation). The numbers get to be big really quickly.
     
  11. Nov 10, 2010 #591 of 1139
    jacmyoung

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    That is if you believe the "new products" will again be found to infringe based on all the new theories and the new PTO disclaimers:) You see TiVo will not be able to argue that the PTO disclaimers are irrelevant, everything will be on the table. E* will not even ask for a jury trial. They say so now for the benefit of their own, to get the new trial, but if they get it they will ask for a summary judgment of non-infringement.

    If they don't get it from Judge Folsom, they will go to CAFC. I don't usually say this but for this one time, mark my words, if there is a new trial, E* will go that route, and TiVo is fully aware of that, as a result TiVo may just end the whole thing. This is exactly why TiVo will do anything to avoid a new trial.
     
  12. Nov 10, 2010 #592 of 1139
    tivonomo

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    If this premise is true, the rest of your argument is probably right. But the premise is most likely fantasy. At this point we don't know any specifics of E*'s argument on the alleged disclaimers. But we do know that E* told the CAFC and the judges ignored their plea and continued to the en banc.
     
  13. Nov 10, 2010 #593 of 1139
    jacmyoung

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    What do you mean? I don't think E* had the illusion that the en banc panel would skip the oral argument, is that what you are trying to say? Then again you don't know what you are talking about. Are you now saying the en banc will ignore E*'s request and refuse to order a new trial? How do you know that when the en banc has yet ruled?

    I will not even go so far as HighdefGator to say they WILL order a new trial, there can be other relief or TiVo still can win, but if there is a new trial, E* will likely go straight to ask for a summary judgment.
     
  14. Nov 10, 2010 #594 of 1139
    jacmyoung

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    You know what as much as you made a lot of sense, the mere fact E* can now rely on the more powerful CPUs to do the things TiVo could not do back then, makes the method totally different. If the difference was only trivial, it means more powerful CPUs are not necessary, E* could have used the new method on the old DVRs too. The fact that they could not work around on the old DVRs actually proved more than colorable difference as far as the DVR methods.

    As much as the TiVo folks want to ridicule Judge Moore, she actually had the most refreshing view of it all. When the district court separated the four independent claims into hardware and software groups, it meant something. As such you almost have to prove what software codes that had infringed the software claims, not just pointing out that PID filter is still there, which is a hardware piece. She also pointed out that both parties could easily have walked away from the injunction hearing thinking they got exactly what the injunction said to do or not to do. That way of exchange had really threw Mr. Waxman off, to the point he practically admitted E*'s interpretation can be one of the reasonable ones.

    It was also Judge Moore who pressed Mr. Waxman to admit if the difference is more than colorable, a new trial would be needed.
     
  15. Nov 11, 2010 #595 of 1139
    tivonomo

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    I'm saying exactly what I said. We don't even know if there was a disclaimer or if this was just another one of E*'s hail mary's. The legal standard for proving a disclaimer is very very difficult to meet.

    All we know is that E* hoped to end the en banc with their filing to the CAFC regarding disclaimers. Obviously, it was ignored because the evidence wasn't clearly convincing and we will have to wait and see what this strategy involves.

    Anything else is pure speculation. Nobody here knows, so there is no point in fantasizing about E* having an upper hand in a new trial on the workaround. That is putting the cart before the horse.:beatdeadhorse:
     
  16. Nov 11, 2010 #596 of 1139
    jacmyoung

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    Upper hand in a new trial:). I don't know about you but if there is a new trial, that means TiVo has lost. And you are now looking forward to arguing who will have an upper hand then?
     
  17. Nov 11, 2010 #597 of 1139
    peak_reception

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    Recording still not fixed. Will a transcript be available? How the hearing concluded may be important.
     
  18. Nov 11, 2010 #598 of 1139
    tivonomo

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    I've never seen a CAFC transcript released. Unless there is a second recording there won't be anything released by the CAFC.
     
  19. Nov 11, 2010 #599 of 1139
    jacmyoung

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    I know I know, you want to know. The total number of the CAFC judges is an odd number, 15 I think. The CAFC rules specify that any CAFC panel will have an odd number of judges on it, a minimum of three of course, but can be 5, 7, 9,...all the way to 15 as a full bench I believe.

    Now I was wondering how Judge Moore was able to throw off one of the best, if not the best CAFC/SC lead attorney by getting him to make two very crucial concessions as I explained above. No one else did, not even Judge Rader was able to get him to make such concessions. Not saying such concessions will determine the outcome but if used against TiVo, TiVo cannot really complain.

    Apparently Judge Moore is also a hot mom:) and she also has two degrees in electrical engineering:

    http://www.cafc.uscourts.gov/index....-moore-circuit-judge&catid=1:judges&Itemid=24
     

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  20. Nov 11, 2010 #600 of 1139
    Greg Bimson

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    I'm here to add my opinion after listening to the recorded transcript, and will be gone once again:

    TiVo attorney Waxman should have led with the fact that Echostar's interpretation of the injunction is impossible. Heck, truth be told, I would think that EchoStar attorney Rosenkranz may have unwittingly yielded that point, causing the house of cards to fall for any argument regarding the failure to disable.

    Early on in Rosenkranz's argument, he made he claim that one cannot replace the eight models of DVR with the term "Infringing Products" anywhere it is noted within the injunction. Yet, there is both ample case law and simple rules of English that supports it. I have a distinct feeling that TiVo attorney Waxman was saving it for his last argument, which of course we couldn't hear.

    After hearing Rosenkranz's argument, I think EchoStar lost the "failure to disable" provision. I just don't believe the jurists believed the argument at all, so the questions became somewhat semantic regarding the disablement provision.

    Of course, this appeal focuses on the methods Judge Folsom used to find contempt. So of course most of the questions posed to TiVo would be to review their stance and validate what Judge Folsom had done.

    EchoStar's entire argument is "on alternative", but it is predicated on positions that are half-truths. They were successful in having the jurists continually ask about the PID filtering, which also occurred during the original CAFC appeal last year. However, TiVo attorney Waxman refused to concede that PID filtering was not used to find infringement. He finally made the point I made all along: every single expert testfied PID filtering met the step of Claims 31 and 61, the "Software Claims". No matter what other information was addressed or how EchoStar attempted to obfuscate the argument, it is the single reason why that step of the claim should STILL be found to be met.

    There were valid questions raised, especially as the jurists mention the method the jury found EchoStar infringing. I honestly believe that Waxman's defense from questions asked by two of the jurists was correct, but I think it was way too wordy. That does leave some doubt in my mind how the infringement issue will be handled. My personal opnion is that TiVo met the colorable difference test head-on and that Judge Folsom's ruling should stand. However, I'm not so sure some on CAFC panel may agree.

    And I still would have liked to hear the remainder of the transcript. I think it was about to get very interesting, as Waxman had yet to address EchoStar's "interpretation" of the injunction.
     
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