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TiVo vs. Echostar Court Case: Post Hearing Discussion

Discussion in 'Legislative and Regulatory Issues' started by Tom Robertson, Feb 17, 2009.

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  1. Mar 6, 2009 #821 of 1468
    Curtis52

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    When Judge Folsom said he won't rule immediately, he was speaking along the lines of "immediate vicinity". Usually when a judge says something like that he means he will provide the ruling from a nearby donut shop.

    One wonders what a judge says when he wants people to know that he won't provide a ruling immediately after the hearing because he wants the parties to provide proposed FFCLs updated with references to the transcript for him to read before ruling and writing his own FFCL.
     
  2. Mar 6, 2009 #822 of 1468
    jacmyoung

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    I have already said why the two are not related, even though that report seemed to have linked them.

    Because Judge Folsom ordered the final FFCLs from both parties at the very beginning of the hearing due to some apparent issues such as incomplete FFCLs filed by both.

    But a judge's comment whether a ruling on an issue will be made "immediately" usually comes at the end of the hearing or when he had the chance to hear all the arguments during the hearing regarding such issue.

    And if after hearing the arguments he believes additional inquiries are needed for that particular issue, or which ever party that brought up the issue may not have presented a convincing argument, or the issue has become less clear after the arguments, that is when he usually says I will not rule on that issue immediately, not based on the current inquiry.

    An example:

    http://www.redorbit.com/news/general/137471/judge_wont_issue_decision_on_schiavo_yet/index.html

    I will try to avoid the politics in the above case, only to explain why sometimes a judge says he/she will not make an immediate ruling on an issue. And we know in the end the issue did not end in the parents' favor.

    Another example:

    http://www.usatoday.com/life/people/2005-03-11-leno-jackson_x.htm

    In the above case, the judge did not want to immediately rule on the finance issues, rather indicated parties should request a new action so he could hear more for further approval. Sounded familiar to what Judge Folsom was reported as saying.

    Of course in some cases when a judge says he/she will not rule immediately, he/she literrally means no ruling will be made right at the end of the hearing, rather the judge will need some time to think about it before making the ruling. But in this case, no one expected him to make a ruling right at the end of the hearing in the first place.

    As a result, I am not saying your interpretation has no merit, only that I believe it is likely he meant he would not rule on the infringement issue from this hearing. This is further supported by his next comment in the report, that he said he might need another hearing to determine if the E* DVR service should be turned off or not.

    To decide if the DVR service should be turned off or not, is the same as saying to decide if the DVR service still infringes or not. If still infringing, should turn off, if not, don't have to turn off.
     
  3. Mar 7, 2009 #823 of 1468
    nobody99

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    I must have missed that part. When was it that Judge Folsom asked TiVo for a new action?
     
  4. Mar 7, 2009 #824 of 1468
    Greg Bimson

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    They are nowhere near the same.

    DISH/SATS was found guilty of infringement in April 2006. DISH/SATS was then ordered in a final judgment and injunction order to pay TiVo for that infringement and to disable the Infringing Products. The finding of guilt was based on the charge; the judgment and order was the remedy.

    They are two completely different issues.

    If the Infringing Products continue to infringe, there first must be a ruling that those devices infringe, then there will later be an order that is the remedy for infringement and contempt.
     
  5. Mar 7, 2009 #825 of 1468
    Greg Bimson

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    As a matter of fact, if TiVo and DISH/SATS are to provide Proposed FFCL's for the Judge regarding this hearing, the FFCL's that the parties provide should only address infringement and colorable difference. Once the ruling is given in the form of the FFCL by Judge Folsom, then the only ruling that should come out is based on infringement and colorable difference.

    Contempt (and any possible remedies) would be ruled upon after the infringement and colorable difference issue.
     
  6. Mar 7, 2009 #826 of 1468
    jacmyoung

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    The point, and the only point here is:

    When a judge says he is not going to rule immediately on an issue, it is usually because the party that had brought up such issue had failed to convince him to act on their request, and the end results had usually not been in the moving perties' favor.

    What TiVo had asked the judge to do was to find E* in contempt and order E* to shut off its DVR service in 7 days, and the judge said he would not rule immediately on whether the DVRs are still infringing or not, and he might need another hearing (a new action) to determine if the DVR service should be shut off or not.

    Two more examples, again let's avoid the politics of the cases, only focus on the implication of a "no immidiate ruling" aspect:

    http://rawstory.com/news/afp/Judge_says_no_immediate_ruling_on_G_12222007.html

    http://www.reuters.com/article/domesticNews/idUSN2624981220070926

    [Mod edit: political commentary redacted.]
     
  7. Mar 7, 2009 #827 of 1468
    Curtis52

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    The judge ruled on the case ten days later. Not bad but certainly not immediate. Judges rarely rule from the bench in complex cases.

    link
     
  8. Mar 7, 2009 #828 of 1468
    Curtis52

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    The judge provided his ruling two weeks later. Not bad but certainly not immediate. Judges rarely rule from the bench in complex cases.

    link
     
  9. Mar 7, 2009 #829 of 1468
    jacmyoung

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    And what was the outcome?:)

    Are you not at least somewhat convinced that when a judge says he will not rule immediately on a moving party's request, it is not a good sign for the moving party?

    In the above two cases, the moving parties literally asked the judges to rule "immediately" due to time sensitive nature of the issues.

    TiVo in this case has been asking pretty much the same thing, your honor please find E* in contempt and order to shut their DVR service in 7 days. And it has been going on for almost a year now. When TiVo heard that the judge would not rule on it immediately, what should their lawyers tell Rogers what that meant?

    Not to mention in this case the judge also said he might need another hearing (a new action) to further determine whether to shut E*'s DVR service off or not.
     
  10. Mar 7, 2009 #830 of 1468
    Curtis52

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    Indeed. The two cases cited show the opposite. Surely it wasn't made up. Maybe it was "opinion".
     
  11. Mar 7, 2009 #831 of 1468
    jacmyoung

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    Of course you conveniently forgot the judge in this case also said he would probably need another hearing to further determine the infringement issue.

    But granted if you may succeed in picking my words and say: Hey, got you there! Lier lier pants on fire.

    I don't care, as long as E* is not in contempt, that is all I care for. the TiVo folks can have all the fun pointing out some failed words I used.

    Everyone has his own ways to find satisfaction in life:)
     
  12. Mar 7, 2009 #832 of 1468
    Greg Bimson

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    Judge Folsom said that? Where?

    I am trying to wrap my brain around why Judge Folsom would originally order a hearing on continuing infringement, and now will have to order another one.

    And I certainly cannot find where Judge Folsom ever said he'd need to order another hearing on continuing infringement.
     
  13. Mar 7, 2009 #833 of 1468
    CuriousMark

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    True

    False

    He did not say what any further hearings if needed, would be about. The false fragment above is pure speculation at best. Other speculations are that the judge may have to revisit the monetary penalties and perhaps even the injunction based on the results of the current hearing.

    That certainly makes the most sense.
     
  14. Mar 7, 2009 #834 of 1468
    nobody99

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    So we should all ignore Judge Folsom's comment at the last hearing that they "should make serious effort to resolve this before I enter a ruling" and telling Ergen specifically that he should be "meeting with Mr. Rogers"

    So rather than drawing the logical conclusion that Judge Folsom is attempting to get DISH to settle (which would certainly explain the day), we are supposed to instead use the outcome of a case (which has nothing to do with patent infringement) where a man tried to have a homosexual encounter with a stranger.

    Makes absolutely perfect sense to me.

    One can't make this stuff up.
     
  15. Mar 7, 2009 #835 of 1468
    jacmyoung

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    At one time it made the most sense to say E* clearly violated the order for the continued use of the DVR functionalities.

    At one time it made all the sense that a bench trial to find DVR infringement would be nice.

    At one point it made no sense the software should even be a part of the discussion.

    At one point both parties were arguing how much the additional damages should be.

    And yet at this point, there is on agenda to discuss the damages.

    What makes the most sense to some may not make much sense to the other.

    What made a lot of sense in the past may no longer make any sense.
     
  16. Mar 7, 2009 #836 of 1468
    jacmyoung

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    Judge Folsom has been saying this for the last three years, did Charlie settle?

    And what was that Charlie said in his latest conference call? He would wait for the judge's ruling before considering his next step.
     
  17. Mar 7, 2009 #837 of 1468
    Greg Bimson

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    And the ruling on that (and any ruling) is still pending.
    And that was one topic of the 17-19 February hearing.
    It was always going to be, at some point, as TiVo has accused DISH/SATS of continuing sales of product that was not originally adjudged. The KSM standard would have to be used.
    There may or may not be a hearing for additional damages. Both parties have filed briefs with the court to have a ruling on damages. If Judge Folsom needs a hearing, then he will order one. If not, the ruling on additional damages will be released. And additional damages have nothing to do with contempt, unless the modified DVR's sold after those models were found infringing are found as continuing to infringe.
    There are specific issues that must be addressed before another issue, such as finding infringement on the devices modified then sold, before addressing the motion for additional damages.
     
  18. Mar 7, 2009 #838 of 1468
    jacmyoung

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    True, but do you still insist not disabling the DVR functions itself, alone, is a violation?

    No it was not, there was never a bench trial.

    I take that as you finally agree software can be considered a "device"?

    There are two motions before Judge Folsom, one is TiVo's motion to find E* in contempt, the other is TiVo's motion to seek additional damages.

    This current hearing deals with only the first motion, not the second.

    After the ruling from this hearing is final, TiVo may ask the judge to address the next motion.
     
  19. Mar 7, 2009 #839 of 1468
    Greg Bimson

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    Why not? It certainly could be a violation in and of itself. The order said to disable, and when the order became valid, nothing was disabled.
    I said it was a hearing, no need for a trial.
    Sure, but not in this case.
    Correct, to a point. A finding that the modifications continue to infringe affects the damages motion.
    Which would be to move the court to find the ViP series as merely colorably different and infringing.
     
  20. Mar 7, 2009 #840 of 1468
    nobody99

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    LOL. The appeals decision was a little over a year ago. So apparently Judge Folsom was asking them to settle for two years before the appeal? :lol:

    Since you haven't provided a single shred of evidence that Judge Folsom has been asking DISH to settle, and since clearly the timeline presented is not possible without time travel, I will consider the opinion given completely without merit.

    Incidentally, I am laying 50-50 odds that time travel will be presented as a valid counterargument.

    (This is my proposed Findgs of Post and Concusions Of Logic)
     
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