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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 18, 2010 #721 of 1139
    Greg Bimson

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    How can there be an argument when every single expert testified that PID filtering met the parse step of the Software Claims?

    Everyone agreed. No argument. Until now, because EchoStar is trying take back what they stated at trial.
     
  2. Nov 18, 2010 #722 of 1139
    tivonomo

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    A jury's purpose is to make a decision or find facts. They have already done that.

    E* has raised no new open issue of infringement and therefore there are no new reasons to have a jury trial. The "claims as construed" still apply to the workaround very well. The PID filter's parsing was agreed upon by both sides. To say that E* has a constitutional right to now have a jury analyze this claim is absurd and pointless.
     
  3. Nov 18, 2010 #723 of 1139
    James Long

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    Isn't that one of the questions that the justices want to answer with this en banc hearing? Seems like a waste of time if the answer is so cut and dried.

    Oh well ... four more months.
     
  4. Nov 18, 2010 #724 of 1139
    bobukcat

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    Does the PID filter still operate exactly the same in the workaround software as it did before? I also think that they agreed to the stipulation that it met the parsing step because the judge instructed everyone that for the purposes of the trial "parse" = "analyze", something I think they should have attacked at the first appeal.
     
  5. Nov 18, 2010 #725 of 1139
    scooper

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    That's because 5 expert witlesses didn't realize what they were talking about, and at the time neither did anybody else.

    And another reason for appeals is to CORRECT errors such as this.
     
  6. Nov 18, 2010 #726 of 1139
    tivonomo

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    And E* didn't appeal the terms "parse" or “automatically flow controlled” for that matter.

    They won't be redefined.

    I believe a lot of people here need to reread Folsom's ruling. The summary of arguments is factual and Folsom's ruling is hardly pushing the envelope.

    http://phx.corporate-ir.net/External.File?item=UGFyZW50SUQ9NjU5NjB8Q2hpbGRJRD0tMXxUeXBlPTM=&t=1
     
  7. Nov 18, 2010 #727 of 1139
    tivonomo

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    It is indeed a waste of time to reargue the facts of the case. But the purpose of the en banc was to reconsider the tests that can take place in a contempt hearing and the interpretation of the disablement clause. Not rearguing what parses applies to and means.
     
  8. Nov 18, 2010 #728 of 1139
    HobbyTalk

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    Funny, it appears that some of the Judges did just that. Are you saying the Judges are wasting their time?
     
  9. Nov 18, 2010 #729 of 1139
    tivonomo

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    I am saying they were asking questions because they are not familiar with the case. They didn't vote to hear this case based on the claim construction. There is no way in the time given to vote for the en banc to become adequately familiar with the case. This case was given en banc consideration in order to reexamine the tests that can take place in a contempt hearing.
     
  10. Nov 18, 2010 #730 of 1139
    jacmyoung

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    Because the PID was never argued to the jury to be one of the items that contributed to the infringement of the software claims, it has to be the item on the record to be argued by both parties for or against, for the PID to be an adjudicated issue.

    In fact if you read the appeal court decision to uphold the jury's verdict on the software claims, the PID was never even remotely a consideration at all, it was one of those software codes in the old software that TiVo identified to have met the "parse" limitation of the software claims, which had nothing to do with the PID at all.

    The fact the experts agreed the PID also parsed, is not the same as saying such agreement had led to the jury's finding that the PID was part of the infringement when in the end it was the other thing TiVo argued that worked.

    Besides, you and TiVo continue to ignore the fact E* had finally also clearly pointed out that the new software no longer has all the other codes that meet all of the other software claim terms I had listed above.

    Do you not agree that in order to prove infringement by clear and convincing evidence, at a minimum TiVo has to also pinpoint the codes in the new software that met those other terms?

    Are you saying TiVo only needs to prove ONE out of ten different terms, that was it?
     
  11. Nov 18, 2010 #731 of 1139
    James Long

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    The question I was referring to was regarding when a new trial is needed ... Rearguing the definitions is exactly what the Honorable Judge Folsom did - except he forgot to involve a jury. So if you say it is wrong to reargue the definitions you are saying Judge Folsom was wrong in how he handled this case.
     
  12. Nov 18, 2010 #732 of 1139
    jacmyoung

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    Where did you get that idea? Those judges spent a lot of time reviewing the case before the oral argument, if you ask a lawyer or listened to the Judge Rader's interview, they had polled one another, often times had already made up their minds before the hearing.

    "Educating those judges during the hearing" is as wishful thinking as it can get, all you need to go back to see is how successfully Mr. Waxman had "educated" Judge Rader last time.
     
  13. Nov 18, 2010 #733 of 1139
    tivonomo

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    I'll play that game. What exact definition did Judge Folsom reargue?

    I'll wait as long as it takes for you to find that answer.. :D

    Hell might have to freeze over though...


     
  14. Nov 18, 2010 #734 of 1139
    tivonomo

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    Where did you get that idea?

    Oral arguments are exactly for that reason - educating the judges.

    Re: the en banc vote, they have a couple weeks to make a decision amongst all of their other responsibilities. They look at things at a high level because that is all they have time for... for you to think otherwise is unrealistic.
     
  15. Nov 18, 2010 #735 of 1139
    Greg Bimson

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    The judges have only the case information and the briefs available to them. They asked questions seeking to clarify the position of each party. For example, Judge Moore had asked about the PID filtering. Counsel Waxman hammered home the point that all five expert witnesses testified that it met the step limitation of the claim. It appears Judge Moore's problem with the PID filtering was because EchoStar within their brief obfuscated one of TiVo's expert witnesses to state that PID filtering didn't meet the step. Clarification.
    Never argued to the jury.

    Question: Does PID filtering meet the step of the "parse" claim within the Software Claims?

    All five experts answered yes. I'm sorry, but that is speaking EXACTLY to the issue at hand, right in front of the jury. The reason it is such a problem is because it requires experts to recant their testimony given under oath in front of a jury.
    No, Judge Folsom used the information from the trial to define "no open issues of infringement" and "mere colorable difference".

    The KSM standard applies. It doesn't require a jury. If a modified device is found to be "merely colorably different" against the claims as construed by the court, then a test for infringement must also be applied. Using the law of the case, the determination was made. One question in front of the en banc was if Judge Folsom's evaluation was applied correctly. Hence the reason for rearguing the "parsing" step again.

    It wasn't that Judge Folsom had reargued definitions, it was simply that EchoStar didn't like having their own experts' testimony from the trial used against them in the contempt proceeding.
     
  16. Nov 18, 2010 #736 of 1139
    tivonomo

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    Thanks for your clear, concise, and compelling arguments based on the facts of the case.
     
  17. Nov 18, 2010 #737 of 1139
    peak_reception

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    Well, Thanksgiving is almost here, so let's talk some turkey:

    Judges on the en-banc:

    1) Rader, yes, a slam dunk for DISH (judge on 1st panel)

    2) Lourie, yes, a slam dunk for TiVo (judge on 1st panel)

    3) Dyk, yes, sounding partial for DISH.

    4) Moore, yes, sounding partial for DISH.

    5) Gajarsa, yes, not showing partiality.

    6) Newman, yes, not showing partiality.

    7) Prost, yes, not showing partiality.

    8) Linn, ? , I think so but did he say anything?

    9) Michel? Same as Linn, or is Bryson #9?

    Mayer did not participate in the oral argument hearing, even though he ruled in TiVo's favor on the 3 judge panel. Said to be in a state of semi-retirement now.

    So, notwithstanding Mayer's status in the case, it sounds so far like 3 to 1 in favor of DISH.

    My guess is that if DISH gets to 5 then Mayer will stay on the sidelines and DISH wins. Why? Why else would he not attend the oral arguments unless he were taking leave from the case for whatever reason?

    2 more judges to go for DISH, from the 5 not already known or heard to be partial. For the first time in many years it looks to me like the odds are in DISH's favor, for a change, especially given the passion shown by Rader, Moore, and Dyk.
     
  18. Nov 18, 2010 #738 of 1139
    HiDefGator

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    I didn't hear that same level of passion from anyone siding with Tivo.
     
  19. Nov 18, 2010 #739 of 1139
    jacmyoung

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    Yes it analyzes, but it cannot analyze any “audio and video data”, and it does not “temporarily store said audio and video data”, as such there cannot be a “source object” to “extract” said “audio and video data” from the PID filter which was not temporarily stored, therefore the source object cannot “convert” such “audio and video data” to a “video stream”…

    So who cares if the PID parses? Again “parse” is only one of the many claim terms, each and everyone of them must be met to prove infringement.

    Wasn't it you who said the reason Judge Mayer skipped the oral argument might be that he had already seen the votes and knew it would have been a lost cause for him to try to help TiVo?
     
  20. Nov 18, 2010 #740 of 1139
    peak_reception

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    True, not even from Judge Lourie. On the other hand, it didn't sound good for TiVo at the last oral hearing either, with Judge Rader ripping into TiVo.

    Do you know if judge #9 is Michel or Bryson?
     
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