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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 17, 2010 #81 of 1139
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    To be fair it was an artificial high after a similar high volume jump back in March when it appeared Tivo would win this thing this year. Look at a full year and you'll see the massive jump up and now back again.
     
  2. May 17, 2010 #82 of 1139
    jacmyoung

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    Of course no surprise the analysts are back pumping TiVo again. This is one profession you can get away with anything you said yesterday that was wrong, and continue to be possibly wrong, people will continue to listen. Even politicians don't get such good treatment:)
     
  3. May 17, 2010 #83 of 1139
    James Long

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    They are not. Perhaps later today when they are sure that the stock is leveling off but no new analysis.
     
  4. May 17, 2010 #84 of 1139
    Kheldar

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    Stock analysts and weathermen: can be consistently wrong and people still listen to them.
     
  5. May 17, 2010 #85 of 1139
    phrelin

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    Well, while I know we aren't supposed to discuss this in detail. But this morning from the Motley Fool Time to Get Back On the TiVo Roller Coaster?:
    I'd hardly call the article a "buy, buy" article, but it seems to say it might be a good time to buy in.

    Then we have the upgrades and downgrades today:
    17-May-10 Kaufman Bros Downgrade from Buy to Hold
    17-May-10 Caris & Company Upgrade from Above Average to Buy

    Maybe I could put together some Tivo derivatives.;)
     
  6. May 17, 2010 #86 of 1139
    Greg Bimson

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    That's a stretch. Each jurist may have completely different reasons to vote for an en banc rehearing. The four questions certainly make it appear that there is a lot more than one train of thought to have the rehearing.

    The corollary to this is the fact that the CAFC still has the original appeal argument briefs from the parties. There is no need to brief the court again. Now the en banc needs the answers to these questions.

    Take a look at the last two of the questions. Those questions appear to be begging TiVo to answer those correctly to proverbially "shut the door".
     
  7. May 17, 2010 #87 of 1139
    jacmyoung

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    Yet neither of the main points raised by TiVo and Judge Folsom was addressed. I hate to repeat them but the most important argument made by TiVo was, E* had waived its right to appeal the injunction when it did not do so last time. This is a very important question of application of law, if the answer to this question is not clarified, E* cannot be held in violation, period, because the en banc panel does not seek to clarify the status of the current DVRs either.

    The main point Judge Folsom’s made was that even if the DVRs no longer infringed, he may still hold E* in contempt for not following his order, because as he argued, when it comes to the determination of violation, his Fifth Circuit local rule applies, not the federal (CAFC) rule. Again this is a very important question of application of law. If this question is not clarified, once again E* cannot be held in contempt because the federal (CAFC) rule does not allow it if the products’ status is not certain.

    But neither of the above questions was asked by the en banc panel, nor was the question asked about the status of the DVRs. Therefore if you are correct that the en banc panel was given TiVo the opportunity to “shut the door”, then they are wasting their time. TiVo can totally satisfy the en banc panel on the two questions, they will still not be able to found E* in contempt. Of course that cannot be true.

    But then again, if one insists that the court can waste its time and has been doing so all along, I really cannot argue against that either. If delaying the process is one of Charlie’s tactics, I am sure he is only too happy to know the en banc panel is going along.

    Of course I am only playing devil’s advocate here, it is not my view that the en banc panel is trying to waste its time, I am only using your argument to reach a very bad conclusion in order to demonstrate that maybe you are wrong.

    BTW, where are Curtis and Tivonomo? While I had some heated exchanges with them, I had always considered both of them very knowledgeable and can appreciate their input, hope they are still around.
     
  8. May 17, 2010 #88 of 1139
    Greg Bimson

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    1) It wasn't "the most important argument".
    2) It appears the en banc doesn't need clarification of this point.

    The actual issue isn't with the waiver of appeal, but only DISH/SATS interpretation of the injunction, i.e., that the injunction is valid and it cannot enjoin non-infringing activity. I'd beg to differ with the fact that the law allows for equitable relief, and that was in the form of disabling the DVR's.
    You need to re-read en banc Question 4:
    The only "ambiguity" relates to the disable order. And those products' status is far from "not certain": they are subject to the disable order and they were modified. There isn't a rule that takes precedence, so both rules apply. Or at least that is the tact I'd take when arguing.
     
  9. May 17, 2010 #89 of 1139
    jacmyoung

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    The 4th question takes on the premise that the order is ambiguous. Therefore it will be improper for the parties to address the question from the standpoint of “whether the order is clear or not”, rather what should the court do “when the order is ambiguous”?

    Earlier I said of course the issue of colorable difference and infringement (the status of the DVRs) would have to be addressed, but after thinking about it, I have reach a different conclusion. It is possible the issue of the status of the DVRs will not be addressed by the en banc panel at all.

    We know that most judges in this case did not want to get involved in the colorable difference and infringement analyses business, except Judge Rader. Back when E* filed the declaratory judgment suit in the DE court, the DE judge transferred the case back to Judge Folsom because he thought Judge Folsom was better at making such decisions.

    Likewise, the majority on the appeals court merits panel said the same thing, they considered Judge Folsom the expert in making such decisions. So it is safe to assume the majority on the en banc panel takes a similar position, as far as the status of the current DVRs, they’d prefer that Judge Folsom makes the call.

    Once you set the above condition in place, it is very easy to explain why the 4 questions were asked by the en banc panel. The 4 questions are all geared to clarify one question really, the questions is, what is the proper venue to address the status of the DVRs? In a contempt proceeding, or in a new action? Most Circuit Judges do not seem to want to question Judge Folsom’s ability to make his decisions on the status of the DVRs, except maybe Judge Rader or Judge Newman perhaps.

    But it is very likely that most of the judges agreed with Judge Rader that the inquiries into the status of the modified DVRs should be done in a new action, not in a contempt proceeding. If so, they don’t have to address the status of the current DVRs at all, all they have to do is to remand the case back to Judge Folsom, and ask him to complete the analyses in that new lawsuit currently pending before him. They are not questioning his judgment in such case, only asking him to do it again in a proper venue.

    That way, no one’s feeling is hurt, E* wanted that new case in the first place, so let’s do it there. Okay, maybe TiVo’s feeling was hurt, but it happened already by this en banc order anyway, so let’s move on and do it right this time.
     
  10. May 17, 2010 #90 of 1139
    jacmyoung

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    Having said the above, I know some TiVo folks will begin to see some hope in this, hey, if they all consider Judge Folsom the expert, then what is the difference if the decision is from the contempt proceeding or from a new action? It is only a matter of time right?

    Well for one thing, time is of essence, we know this too well.

    But more importantly, if the contempt proceeding was not a proper venue, then the final judgment made in the improper venue will have to be rendered moot or invalid, so all the damages and sanctions will have to be reversed.

    In addition, in a new action, the parties can demand jury trial, which is the case in this pending new lawsuit before Judge Folsom. Not only that, if we judge the schedules set for the TiVo v. Verizon and ATT cases, the earliest discoveries/Markman hearings are set about 18 months from now.

    What? Another Markman hearing? You heard that right. Remember the software claims are under rejection by the PTO at this time, in addition TiVo has amended the claims with new descriptions for several key claim elements such as the “transform object”. Therefore a new Markman hearing will be needed for claim construction of such newly defined claim terms. Therefore in the worst case, if the PTO continues to reject the software claims and TiVo is forced to continue to respond or appeal the PTO decision, the new action will be stayed pending the outcome of the PTO reexamination.

    And in the best case scenario the PTO certifies the TiVo’s amendment with the new claim terms, a new Markman hearing and the discoveries may take place over 18 months after the case is remanded from the appeals court.
     
  11. May 18, 2010 #91 of 1139
    jacmyoung

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    This one is interesting:

    http://www.forbes.com/2010/05/14/dish-satellite-hulu-technology-tivo.html?boxes=Homepagechannels

    Forbes did make a mistake by saying:

    The highlighted part is incorrect, while the questions asked by the en banc panel seem to point that way, it did not say Judge Folsom had erred. The "it ordered that the court reevaluate the issue" is also misleading. The en banc order did not order the district court (Judge Folsom) to reevaluate the issue, not yet, it only ordered the en banc panel to reevaluate the issue itself, if this is what he is trying to say.

    Forbes.com does seem to have some unique take on the case. It speculated that Charlie's long fight with TiVo is actually him sizing up the real value of TiVo before he tries to take control of TiVo. I agree with this speculation. Charlie spent $380M to buy Sling, as I said for a long time, and I think he understands it too, Sling and TiVo together make for a great future product. The only question is how much it should be. My guess is he will take TiVo at maybe twice the money he paid for Sling. Just a wild guess. Please don't try to tell me that "poison pill" thing, it has no leverage if the en banc panel does order a reevaluation, i.e. a new action.
     
  12. May 18, 2010 #92 of 1139
    Voyager6

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    One question that needs to be raised is, Can E* get a fair hearing with Judge Folsom? Folsom has already decided that the DVR's must be disabled even if they no longer infringe. If the Appeals Court orders a new infringement trial, isn't the outcome already predetermined? Folsom has already made known his ideas about the redesigned software that E* downloaded. He is sitting on two new redesign proposals and won't review them. What could the Appeals Court possibly order that would change Folsom's mind?
     
  13. May 18, 2010 #93 of 1139
    jacmyoung

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    First tell Judge Folsom politely (so long as Judge Rader does not write the opinion:)) that the contempt proceeding was inappropriate, then order the district court to do it in that new action, that is if TiVo still wants to do it.

    In the new action, the fact finder will be the jury. It does not have to, parties can agree to a bench trial, but they can demand a jury trial too, which as it stands right now, E* does demand a jury trial.

    There are other possibilities, as I said the PTO action can potentially end this thing, but some additional unusual things can happen, such as a settlement:)

    Another thing can happen is, E* can, if it gets the new action, ask Judge Folsom to move the new action back to the DE court, not going to happen, but then it can petition the appeals court to order Judge Folsom to move the case back to the DE court. Not likely to be granted either, but E* cannot lose by trying. There is a good justification to ask for that, if the en banc panel orders a review by the new action, it will have essentially determined that Judge Folsom was wrong in his choice of venue and exercising of discretion.

    That is if the en banc panel ultimately rules in E*'s favor of course.

    Of course Judge Folsom can change his mind too, I am an eternal optimist:)
     
  14. May 18, 2010 #94 of 1139
    James Long

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    Simple - state that: "Infringment must be found in order to order the disablement of a modified product." If Judge Folsom disagrees the appeals court will overturn his rulings.
     
  15. May 18, 2010 #95 of 1139
    jacmyoung

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    I think his question is, what will stop Judge Folsom from continuing to call the new design around option infringement. He can of course continue to do so, only that in a new action, it will be the jury, not him, as fact finder. Not to mention all the other legal options E* will have in a new action.
     
  16. May 18, 2010 #96 of 1139
    Voyager6

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    I am also pointing out that according to Folsom's interpretation of his injunction, E* has no choice but to disable the DVR functions of the infringing products. Folsom didn't care what software solution that E* came up with, he wanted the DVR functions disabled. E* believes that if new software can be downloaded to make the DVR's non-infringing, it is legal for E* to do so. This is a fundamental disagreement about the intention of the original injunction. Will the Appeals Court redefine Folsom's injunction to allow for a software redesign?
     
  17. May 18, 2010 #97 of 1139
    Greg Bimson

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    Isn't that the basis for CAFC Question d?
    If the CAFC can be convinced that the order to disable was not ambiguous in scope (contrary to Judge Rader's belief) then contempt can simply stand. The reality is that TiVo needs to argue in their brief as if they are talking directly to Judge Rader, to get him to change his mind. The way Judge Rader's dissention was written I'd think TiVo could write 45 pages simply to counter many of the mistakes within that document.

    I think too many people are putting an extreme amount of faith that DISH/SATS has the answers to all these questions and that somehow the entire contempt finding will be overturned. That to me is a big leap of faith.

    There's one person that believes that these devices can only be adjudged in a new trial and another that believes the CAFC will create new case law in order to force Judge Folsom to rule in a different manner. I'm not saying it won't happen, but the odds are long. DISH/SATS has thrown everything and the kitchen sink into their argument. It is now TiVo's turn to pull out all the stops.
     
  18. May 18, 2010 #98 of 1139
    jacmyoung

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    No, they will just vacate it.

    I know Greg continues to believe the en banc panel is giving TiVo an opportunity to argue that the injunction is not ambiguous, but one only needs to read the 4th Q to know the en banc panel had already viewed the injunction ambiguous, the Q is what the court should do about an ambiguous injunction.
     
  19. May 18, 2010 #99 of 1139
    James Long

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    They will be more specific than that. Judge Folsom will be remanded to take whatever action the appeals court feels is needed.

    There is no order adjudicating the injunction as ambiguous.
     
  20. May 18, 2010 #100 of 1139
    Greg Bimson

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    Getting ahead of yourself...
    As a reminder:

    1) "there is a substantial question as to whether the injunction is ambiguous". Is it or isn't it?
    2) this is one question, not asked by the entire panel, but a member of that panel, so it isn't that the entire panel believes the injunction is ambiguous

    TiVo needs to shut the door on "ambiguous". I'll even give a big hint: irreparable injury. DISH/SATS so twisted the reasoning for the injunction that TiVo needs to put a stake in the argument.
     
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