1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

TiVo vs. Echostar Court Case: Post Hearing Discussion

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

Thread Status:
Not open for further replies.
  1. Mar 10, 2009 #901 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    No, this hearing was only to address two issues: infringement and colorable difference. The injunction is a separate document without a referring document.

    But the evaluation of both infringement and colorable difference relates exactly to the claim construction (from the jury trial) and the difference between the adjudged devices (also from the jury trial) and the modified devices. Don't act like because this is a contempt motion in front of Judge Folsom that nothing can be used before. The evidence used to convict for infringement is the law of the case.
     
  2. Mar 10, 2009 #902 of 1468
    Curtis52

    Curtis52 Hall Of Fame

    1,487
    0
    Oct 13, 2003
    A large part (half?) of the hearing was about what happened at the trial and the appeal.
     
  3. Mar 10, 2009 #903 of 1468
    Curtis52

    Curtis52 Hall Of Fame

    1,487
    0
    Oct 13, 2003
    Iancu questioning Dr. Storer (TiVo) p 533:

    Q SWITCHING GEARS TO THE OTHER CHANGE JUST BRIEFLY, THE INDEXING CHANGE, WE HAVE HEARD A LOT OF TESTIMONY FROM ECHOSTAR’S WITNESSES ABOUT THE INDEXING CHANGE THEY HAVE DONE. YOU WERE HERE FOR THAT, RIGHT?
    A OF COURSE, YEAH.
    Q DID YOU HEAR DR. RHYNE OPINE THAT THIS PATENT, MR. BARTON’S PATENT, IS ALL ONE INVENTION?
    A I DID.
    Q DO YOU HAVE AN UNDERSTANDING THAT THE SOFTWARE CLAIMS THAT ARE AT ISSUE HERE TODAY, 31 AND 61, ARE INDEPENDENT CLAIMS, INDEPENDENT, SEPARATE FROM CLAIMS 1 AND 32?
    A OF COURSE, I HAVE A NUMBER OF MY OWN PATENTS, AND VERY FAMILIAR WITH THE NOTION OF AN INDEPENDENT CLAIM.
    Q AND LET ME GO TO A DIFFERENT TOPIC, THEN.
    MR. IANCU: LET’S PUT UP CURRENT STORER SLIDE, OR REBUTTAL STORER SLIDE 19.
    Q (BY MR. IANCU) DR. STORER --
    MR. IANCU: YOU CAN CLICK THROUGH THEM ALL.
    Q (BY MR. IANCU) DR. STORER, WITHIN THE CONTEXT OF CLAIMS 31 AND 61, ARE THERE ANY DIFFERENCES IN TECHNOLOGY BETWEEN PRODUCTS NOW AND THE WAY THOSE PRODUCTS WERE AT TRIAL OVERALL WITH RESPECT TO BOTH CHANGES ECHOSTAR IS ALLEGING TO HAVE MADE?
    A NO. I THINK THAT’S –- YOU’VE SEEN THAT THROUGHOUT MY TESTIMONY, NO.
    Q AND WE HAVE SLIDE 19 UP. CAN YOU PLEASE EXPLAIN WHAT YOU HAVE IN MIND WHEN YOU SAY THAT THERE ARE NO CHANGES, BECAUSE, IN FACT, WE HAVE SEEN WITNESSES FROM ECHOSTAR’S SIDE DESCRIBING A NUMBER OF CHANGES OVER THE PAST FEW DAYS?
    A WELL, OKAY. I DON’T WANT TO SOUND LIKE A BROKEN RECORD, BUT I HAVE SAID MANY TIMES IT’S IMPORTANT TO ACTUALLY LOOK AT THE PRODUCT, WHAT WE ARE TALKING ABOUT HERE, THE SOFTWARE, TO ACTUALLY LOOK AT IT; AND IT’S IMPORTANT WHAT IT DOES, NOT WHAT YOU CALL IT. AND I THINK I HAVE MENTIONED ALL OF THESE THINGS OVER THE COURSE OF THE TESTIMONY BEFORE. AND THERE SEEMS TO BE A THEME OF A NAME THAT’S NOT REFLECTIVE OF WHAT’S ACTUALLY HAPPENING. SO, I DON’T KNOW IF I CAN JUST RUN THROUGH THEM QUICKLY HERE, BUT INDEXLESS, RIGHT? OF COURSE, WE SEE THEY DO CONSTRUCT INDICES. WE HAVE
    SEEN THEIR OWN ENGINEERS SAYING, WAIT A MINUTE, THERE IS A MISTAKE. WE DO HAVE AN INDEX. BRUTE FORCE, THE WHOLE IDEA OF THEIR STATISTICS WAS SO THEY COULD NOT DO BRUTE FORCE, SO THEY COULD BE SKIPPING FORWARD AND NOT HAVING TO LOOK AT ALL THAT DATA, AND WE HAD THEIR OWN ENGINEERS EVEN IN THE DESIGN PROCESS SAYING BRUTE
    FORCE WON’T WORK, AND YET IT’S CALLED BRUTE FORCE. THEY TRY TO SAY THERE’S NO PARSING. THEY MADE CHANGES IN THE TITLES FROM PARSING AND TAKING PARSING OUT OF THE TITLE, AND YET WHEN YOU ACTUALLY LOOK WHAT THEIR OWN PEOPLE SAY, WE NEED TO PARSE THE DATA; AND, OF COURSE, WE SAW WHERE WE LOOKED AT THE CODE AND THE WORD PARSE IS IN VARIABLE NAMES, AND ALL THAT SORT OF THING.
    NO-SYNC. THERE WAS A BIG DEAL MADE ABOUT THERE WAS NO COMMUNICATION BETWEEN DIFFERENT LEVELS OF THE CODE, AND THIS NO-SYNC STRUCTURE IS A CRITICAL STRUCTURE THAT’S MAINTAINED IN THE DRIVER CODE. THE DRIVER CODE THAT MR. MINNICK SAID HE
    DIDN’T LOOK AT, HE SAYS HIS ENGINEERS DIDN’T LOOK AT IT, DR. RHYNE SAID EXPLICITLY IN HIS DEPOSITION HE HADN’T LOOKED AT IT, BUT THE NO-SYNC STRUCTURE IS WHERE THIS COMMUNICATION TAKES PLACE BETWEEN THE LEVELS OF THE CODE. SO, IT’S CALLED NO-SYNC, BUT ACTUALLY IT’S THE SYNC, THE COMMUNICATION STRUCTURE.
    SINGLE BUFFER, OF COURSE WE HAVE SEEN THERE ARE TEN BUFFERS. I THINK BY NOW THAT’S PRETTY CLEAR. WE HAVE SEEN ALL -– ALL OF I THINK THE PEOPLE WHO HAVE COME UP HERE, EVEN IF THEY ORIGINALLY SAID THERE WASN’T, SAY THERE IS TEN.
    LINEAR BUFFER, THIS SEEMS TO BE A NEW NAME THAT CAME UP AT THE VERY END. WE KNOW THAT THE ENGINEERS CALL IT A RING BUFFER. THEY CLEARLY USE IT SYNONYMOUSLY WITH CIRCULAR BUFFER. IN FACT, YOU SEE THEM USE THE WORD CIRCULAR AS WELL INTERMIXED IN THE CODE AND IN THE MEMORANDA.
    SO, THERE SEEMS TO BE A THEME OF NAMING. I AM NOT CONCERNED WITH NAMING. I AM CONCERNED WITH WHAT IT ACTUALLY DOES WHEN YOU ACTUALLY LOOK AT THE CODE.
    Q THANK YOU, DR. STORER.
     
  4. Mar 10, 2009 #904 of 1468
    Curtis52

    Curtis52 Hall Of Fame

    1,487
    0
    Oct 13, 2003
    p 536

    CROSS EXAMINATION
    BY MS. KREVANS:
    Q DR. STORER, I JUST WANT TO FOLLOW-UP ON ONE THING THAT MR. IANCU ASKED YOU ABOUT. HE ASKED ABOUT WHETHER YOU AGREED WITH DR. RHYNE THAT THE BARTON PATENT SPELLED OUT ONE INVENTION. AND YOU SAID, NO, YOU DIDN’T AGREE WITH THAT.
    A EXCUSE ME?
    Q YOU SAID YOU DID NOT AGREE WITH THAT?
    A I DIDN’T SAY THAT.
    Q YOU THINK IT’S ONE INVENTION?
    A I’VE SAID A NUMBER OF TIMES THAT THIS PATENT DESCRIBES ACTUALLY THE BASIS OF A MODERN DVR, AND IT HAS A --
    Q ONE INVENTION OR TWO, DR. STORER?
    A AND IT HAS A NUMBER –- TWO KEY ASPECTS TO IT, WITH INDEPENDENT CLAIMS.
    Q DR. STORER, COULD YOU TRY TO JUST LISTEN TO THE QUESTION AND ANSWER IT. ONE INVENTION OR TWO IN THE BARTON PATENT?
    A ONE OVERALL INVENTION, WITH DIFFERENT ASPECTS CLAIMED WITH DIFFERENT INDEPENDENT CLAIMS.
    Q TRUE OR FALSE, DR. STORER, THE HARDWARE DESCRIBED IN THE BARTON PATENT AND THE SOFTWARE DESCRIBED IN THE BARTON PATENT RELATE TO THE SAME INVENTION?
    A CERTAINLY THEY RELATE TO THE SAME INVENTION, SURE.
    Q SO, TRUE?
    A IT’S CERTAINLY TRUE THEY RELATE TO THE SAME INVENTION.
    Q OKAY. YOU READ MR. BARTON’S RECENT DEPOSITION IN THIS CASE, DR. STORER?
    A I BELIEVE SO.
    Q YOU UNDERSTAND THAT MR. BARTON TESTIFIED AT HIS RECENT DEPOSITION THAT COLUMNS 5 AND 6 OF THE PATENT AND FIGURES 4, 5 AND 6, WHICH ARE ABOUT THE MEDIA SWITCH, ILLUSTRATE WHAT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61 DOES?
    A I DON’T RECALL THAT SPECIFIC –- SPECIFIC TESTIMONY.
    Q OKAY. WHY DON’T WE LOOK AT IT.
    A SURE.
    MS. KREVANS: COULD WE SEE MR. BARTON’S JANUARY 22ND, 2009 DEPOSITION, STARTING AT PAGE 121, LINE 12, GOING THROUGH PAGE 123, LINE 4? DO WE HAVE A COPY THAT WE COULD GIVE THE
    WITNESS?
    A OH, THANK YOU. ALTHOUGH THIS IS –- YOU ARE GIVING ME
    THIS, BUT THIS IS WHAT WE ARE LOOKING AT UP THERE, RIGHT?
    Q RIGHT. JUST BECAUSE IT’S A COUPLE OF PAGES LONG, DR.
    STORER, I THOUGHT IF YOU WANTED TO LOOK AT IT ON PAPER THAT
    WOULD BE EASIER FOR YOU.
    A NO, THAT’S FINE. NO, ACTUALLY I HAVE THE MONITOR HERE IS
    FINE.
    MS. KREVANS: JANUARY 22, 2009.
    Q (BY MS. KREVANS) OKAY. DO YOU SEE ON PAGE 121, AT LINE 12, MR. BARTON IS ASKED: IF YOU LOOK AT THE BEGINNING OF CLAIM 31 AFTER THE COLON WHERE IT SAYS PROVIDING A PHYSICAL DATA SOURCE, WHEREIN SAID PHYSICAL DATA SOURCE ACCEPTS BROADCAST DATA FROM AN INPUT DEVICE, PARSES VIDEO AND AUDIO DATA FROM
    SAID BROADCAST DATA AND TEMPORARILY STORES SAID VIDEO AND AUDIO DATA, DO YOU SEE THAT?
    MR. BARTON ANSWERS: I SEE THAT TEXT.
    ARE YOU WITH ME?
    A AND I SEE IT, TOO, YES.
    Q OKAY. MR. BARTON IS ASKED: AND DO YOU HAVE AN UNDERSTANDING, ASIDE FROM THE EMBODIMENTS DESCRIBED IN THE SPECIFICATION, OF WHETHER THE CLAIM LANGUAGE REQUIRES THAT THE PHYSICAL DATA SOURCE PARSE VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA AND TEMPORARILY STORES VIDEO AND AUDIO DATA?
    AND IF WE COULD GO DOWN, MR. BARTON ANSWERS: AS I SAID, THE EXAMPLE EMBODIMENT IN THE SPECIFICATION OF THE PATENT IS THE BEST PLACE TO TALK ABOUT WHAT THE PHYSICAL DATA SOURCE IS DOING.

    QUESTION: WHERE DO YOU THINK THE SPECIFICATION DOES THAT?
    ANSWER: THE SPECIFICATION DOES THAT IN A NUMBER OF PLACES, IF WE GO BACK TO FIGURES, FIGURES 5 AND 6 IN THE PATENT, WHICH ARE DESCRIBED STARTING AT COLUMN 5, LINE 33.
    QUESTION: FOR EXAMPLE, COLUMN 5, LINE 20, WHERE IT SAYS THE EVENT BUFFER IS FILLED BY THE PARSER WITH EVENTS. EACH EVENT IN THE EVENT BUFFER HAS AN OFFSET EVENT TYPE AND TIME STAMP FIELD. THE PARSER APPLIES THE TYPE AND OFFSET OF EACH EVENT AS IT’S PLACED IN THE BUFFER. AND THEN THERE IS A COLLOQUY AMONG THE LAWYERS. THE WITNESS SAYS: I HAD SAID THE FIGURE AND THEN POINTED BACK TO THE TEXT. I ACTUALLY SHOULD HAVE POINTED TO FIGURE 4 FIRST WHICH DESCRIBES HOW DATA COMES INTO THE SYSTEM AND IS PLACED IN TEMPORARY STORAGE. AND THEN IT GOES ON, AND YOU SEE AT THE BOTTOM AT –-
    MS. KREVANS: IF YOU COULD SCROLL DOWN A LITTLE BIT MORE, PLEASE. I AM SORRY, GO BACK UP A SECOND, ONE MORE, KEEP GOING, THE PREVIOUS PAGE. THE BOTTOM OF LINE 123. COULD YOU GO TO THE BOTTOM OF PAGE 123, MICHAEL?
    Q (BY MS. KREVANS) DO YOU SEE THE QUESTION, LINE 20? AND HE WAS ASKED --
    MS. KREVANS: SORRY, LINE 20, MICHAEL.
    Q (BY MS. KREVANS) AND THE PARSER ALSO FILLS THE EVENT BUFFER WITH EVENTS? AND MR. BARTON ANSWERS: AS THE PARTICULAR PARSER DESCRIBED HERE IN THE FIGURES RUNS, IT IDENTIFIES THINGS LIKE FRAME STARTS,OTHER INFORMATION ABOUT THE MPEG STREAM, AND GENERATES AN EVENT WHICH DESCRIBES WHERE IN THESE OTHER BUFFERS IN MAIN MEMORY THE PARTICULAR COMPONENT, THE FRAME START, WHATEVER, OF THE STREAM COMING IN IS SITTING IN MEMORY. THAT WAS MR. BARTON’S TESTIMONY ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61,CORRECT?
    A WELL, NO, YOU LEFT OUT –- AND NOW I DO REMEMBER THIS. HE ALSO HAD ADDITIONAL CLARIFICATION ABOUT THIS PASSAGE AT THE END.
    Q DR. STORER --
    A SO IT WASN’T HIS --
    Q DR. STORER, WHAT I JUST --
    A –- COMPLETE TESTIMONY.
    Q DR. STORER, PLEASE --
    THE COURT: DOCTOR, IF YOU WILL LISTEN TO THE QUESTION AND RESPOND.
    THE WITNESS: OKAY.
    Q (BY MS. KREVANS) THE QUESTION WAS, WHAT I JUST READ WAS TESTIMONY THAT MR. BARTON GAVE ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61 OF THE ‘389 PATENT, CORRECT?
    A THIS WAS TESTIMONY WHICH WAS LATER ALSO AMENDED.
    Q THIS WAS TESTIMONY THAT MR. BARTON GAVE UNDER OATH AT HIS DEPOSITION ON JANUARY 22ND, 2009, CORRECT?
    A THAT IS CORRECT, AS I MENTIONED EARLIER.
    MS. KREVANS: THANK YOU, YOUR HONOR.
    MR. IANCU: JUST BRIEFLY, YOUR HONOR.
    THE COURT: NOW FOR THE REST OF THE DEPOSITION.

    REDIRECT EXAMINATION
    BY MR. IANCU:

    Q TURN TO PAGE 1, PLEASE.
    THE COURT: WE ARE NOT GOING BACK TO PAGE 1.
    MR. IANCU: WELL, WE HAVE ‘TIL NOON, DON’T WE?
    A JUST TO BE SAFE, I WILL CLOSE THE COVER.
    Q DR. STORER, ON THAT LAST POINT, IS THE MEDIA SWITCH AN EXAMPLE OF THE PHYSICAL DATA SOURCE?
    A ABSOLUTELY.
    Q DO YOU RECALL MR. BARTON DESCRIBING THROUGH THE REST OF HIS DEPOSITION, WITHOUT HAVING TO SIT HERE AND READ INTO THE RECORD ALL OF THE FEW HUNDRED PAGES, DO YOU RECALL HIM DESCRIBING OTHER EMBODIMENTS OF THE PHYSICAL DATA SOURCE?
    A ABSOLUTELY. AND HE, OF COURSE, WAS PROUD OF HIS INVENTION AND WAS DESCRIBING THE WHOLE THING, LOTS OF –- LOTS OF FOCUS ON THE MEDIA SWITCH IN CLAIM 1 AND THROUGHOUT THE DEPOSITION.
    Q AND DO YOU RECALL HIM DESCRIBING AN ENCODER AS AN EMBODIMENT OF THE PHYSICAL DATA SOURCE IN CLAIMS 31 AND 61?
    A YES.
    Q AND DO YOU REMEMBER HIM DESCRIBING THE PID FILTER AS AN EMBODIMENT DISCLOSED IN THE PATENT FOR THE SOFTWARE CLAIMS 31 AND 61?
    A YES.
    Q THANK YOU, DOCTOR.
     
  5. Mar 10, 2009 #905 of 1468
    Curtis52

    Curtis52 Hall Of Fame

    1,487
    0
    Oct 13, 2003
    This is the only mention of another hearing:

    p 20

    THE COURT: WHAT RELIEF -- IF I SHOULD AGREE WITH YOUR CONCLUSIONS, WHAT RELIEF ARE YOU REQUESTING ON BEHALF OF YOUR CLIENT?
    MR. CHU: THIS HEARING, YOUR HONOR, WILL OF COURSE ADDRESS WHETHER THEY ARE IN CONTEMPT, AND RELIEF WILL BE ANOTHER PROCEEDING. OBVIOUSLY, WE WOULD WANT AN APPROPRIATE ORDER SO THAT THEY WOULD DISABLE THE DVRS AND THAT THE COURT’S ORIGINAL INJUNCTION WOULD BE ENFORCED. THAT WOULD BE A MINIMUM. WE THINK THAT MONETARY RECOVERIES WOULD ALSO BE APPROPRIATE. THERE MAY BE OTHER RECOVERIES APPROPRIATE AS WELL, BUT WE THINK THAT BOTH SIDES SHOULD HAVE A FULL OPPORTUNITY TO DEVELOP THE RECORD BEFORE YOUR HONOR.
    THE COURT: THANK YOU. OPENING ON BEHALF OF ECHOSTAR.
     
  6. Mar 10, 2009 #906 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    Let me just point out two things, as I have said, and what the E* lawyer had tried to get the TiVo's witness to admit but he seemed very reluctant to admit it, that is all of these patent claims describe one invention, not two.

    Additionally, what are described in the "hardware claims" are closely related to what are described in the "software claims."

    The "physical data source" described in the "hardware claims" is the same "physical data source" described in the "software claims."

    And in the "hardware claims" such "physical data sources" could not possibly exist without it separating the A/V data, parses the data, and built an index table, and then stores such index table "temporarily" in one or several buffers, and then later a "source object" will "extract" such index table for DVR trickplays.

    Since there is only one invention, the essential part of that "physical data source" in the "hardware claims", the building of that index table as part of the "parse", must be relevant to the same "physical data source" in the "software claims" even though the word "index" does not appear in the "software claims."

    One other thing TiVo was saying was, E* engineers admitted they could not make it work without some form of indexing. That may be true, but again TiVo does not make any distinction when that indexing may be performed.

    To meet the claims limitations, that indexing must be performed before the A/V streams are recorded to the harddrive, then temporarily stored in the buffer, only then can that "source object" "extract" such info for DVR trickplays.

    If the indexing is done seme time much later, such as when after the A/V streams are already recorded onto the harddrive, and then only after the user begin to issue DVR trickplay commands, will such indexing be built and be used, then no, such method of indexing is not the same as described in the patent claims.

    Because they do not follow the same logical order. Without the index table first being built and temporarily stored, before the A/V sterams are recorded to the hard drive, the source object simply cannot extract it for DVR trickplays, that is the limitation of the TiVo invention.

    The E* invention is not subject to such limitation, it does not parse then build that indexing then store it temporarily, before the A/V streams are recorded onto the hard drive. There is no such step in the E* new design, and this step is TiVo's "core invention" and E*'s new design does not rely on such step, it simply does not have such step.
     
  7. Mar 10, 2009 #907 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    So Judge Folsom never mentioned another hearing? Wow.

    So Morgan Chu asked for another hearing related to remedies? Wow.

    Much supposition goes flying out the window.
     
  8. Mar 10, 2009 #908 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    Even though you have omitted the part preceding this quote, by just reading the response Mr. Chu made to the judge, it is clear the judge was saying this hearing should only address whether E* is in contempt or not, and if so whether the DVRs should be disabled.

    This hearing does not address the other "relief", i.e. the damage part.
     
  9. Mar 10, 2009 #909 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    I wouldn't be so quick to jump into any conclusion, Curtis52 has been somewhat selective in my view:) though I must say he did much better than what the TiVo investor Mike did.
     
  10. Mar 10, 2009 #910 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    Which is it? Indexing is not in patent claims 31 and 61, or indexing is required? Which is it?

    The invention is a DVR. Let's see if anyone can design around it so as not to infringe upon the patent.
     
  11. Mar 10, 2009 #911 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    Indexing is a necessary part of meeting the definition of the "physical data source", therefore is relevant to the invention and relevant to the software claims, because the software claims describe the same "physical data source" not another different "physical data source."

    Try that in front of Judge Folsom and I think he will laugh at that notion. I am glad at least TiVo is not saying that.
     
  12. Mar 10, 2009 #912 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    The physical data source accepts broadcast data. It has nothing to do with "an index". Nowhere in claims 31 and 61 does an index appear, nor can it be inferred an index is required.
    Ahh. But TiVo has a patent on a DVR process. One does not need to compare the adjudged receivers to the TiVo product to test for infringement. That is why patent trials adjudge infringement against patent claims.

    It is becoming apparent that DISH/SATS is attempting to design-around by changing the order of a few pieces and renaming processes in order to say they no longer infringe. That isn't colorably different.
     
  13. Mar 10, 2009 #913 of 1468
    Curtis52

    Curtis52 Hall Of Fame

    1,487
    0
    Oct 13, 2003
    p63 Dr. Storer (TiVo)
    DIRECT EXAMINATION CONTINUES
    BY MR. IANCU:
    Q ALL RIGHT. IF WE COULD PUT BACK UP SLIDE 26, PLEASE. ALL RIGHT. SO, DR. STORER, THIS WAS SLIDE 17 FROM TRIAL THAT YOU DESCRIBED. LET ME ASK YOU NEXT IF ECHOSTAR STILL HAS AN INDEX TABLE?
    A YES, THEY DO.
    Q AND LET’S TAKE A LOOK AT EXHIBIT 3176 WHICH APPEARS IN PART ON THE NEXT SLIDE. CAN YOU PLEASE DESCRIBE WHAT YOU SEE THERE?
    A SO THIS IS ONE OF MANY, MANY MEMOS AND EMAILS FROM ENGINEERS AND BETWEEN ENGINEERS I LOOKED AT. THERE ARE 11,000 PAGES OF DOCUMENTS PRODUCED AT ONE POINT, MANY OF WHICH WERE THINGS LIKE THIS. AND HERE THERE IS AN EXCHANGE ABOUT INDEX, QUOTE, FILE REMOVAL WHERE THE ENGINEER IS SAYING THIS SECTION
    OF THE DOCUMENT CONTAINS MANY INACCURACIES. AND IT GOES ON TO SAY, WE STILL HAVE AN INDEX FILE, AND THEN DESCRIBES THE DIFFERENCES BETWEEN THE NEW INDEX FILE AND THE OLD ONE.
    Q WAS MR. CARLSON HERE REFERRING TO AN INDEX THAT APPEARS IN BOTH PRODUCTS, 50X AND BROADCOM?
    A IT IS TRUE THAT AN INDEX DOES APPEAR IN BOTH 50X AND BROADCOM, THAT’S CORRECT.
    Q NOW, MR. CARLSON HERE REFERS TO WHAT’S CALLED A WTT FILE. WHAT DO YOU UNDERSTAND THAT TO BE?
    A OKAY. SO THE WTT FILE IS THE NAME FOR THE INDEX. IT’S IN THE BROADCOM PRODUCTS, IF YOU WILL. AS I JUST MENTIONED, THERE IS ALSO A SIMILAR NAME IN THE 50X PRODUCTS AS WELL.
    Q IS THE –- IS THIS INDEX THAT MR. CARLSON IS REFERRING TO USED FOR TRICKPLAY?
    A SO THIS INDEX ACTUALLY IS USED TO MAINTAIN -- I DON’T KNOW, PEOPLE, ANYONE WHO IS FAMILIAR WITH THE DVR KNOWS ABOUT THE BAR AT THE BOTTOM THAT SHOWS YOU YOUR PROGRESS AND SO ON WHEN YOU ARE DOING THE TRICKPLAY, AND THIS INDEX IS USED TO MAINTAIN THAT BAR.
    Q ARE THE DIFFERENCES IN THE INDEXES, THE ONE MR. CARLSON IS REFERRING TO AND THE ONE IN THE PRODUCTS AT TRIAL, RELEVANT TO THE CLAIMS IN ANY WAY?
    A NO. OF COURSE, AS WE’VE TALKED ABOUT, CLAIMS 31 AND 61 DON’T EVEN CONTAIN THE WORD INDEXING OR HAVE INDEXING IN THEM. AND EVEN IF SOMEHOW ONE WANTED TO INCLUDE SOME NOTION OF INDEXING, IT’S HARD TO UNDERSTAND HOW SOME DETAILS OF THE DIFFERENCES COULD POSSIBLY BE IN THE CLAIM. BUT –-
    Q NOW, LET’S TAKE A LOOK AT EXHIBIT 3278 AND PAGE 10 OF THAT IN PARTICULAR WHICH AN EXCERPT APPEARS ON THE NEXT SLIDE. DO YOU UNDERSTAND THAT ECHOSTAR SAYS IT NOW USES A STATISTICAL ANALYSIS FOR TRICKPLAY?
    A YES. SO IN ADDITION TO THE INDEX THAT I JUST MENTIONED THAT’S USED TO MAINTAIN THAT BAR, THERE ARE ALSO STATISTICS MAINTAINED THAT ARE USED TO –- FOR THE TRICKPLAY AS WELL.
    Q DOES THE USE OF STATISTICS FOR TRICKPLAY MAKE THE ECHOSTAR PRODUCTS DIFFERENT FROM THE WAY THEY WERE AT TRIAL IN ANY WAY MEANINGFUL TO CLAIMS 31 AND 61? A SO AGAIN, OF COURSE NOT, RIGHT? INDEXING ISN’T EVEN IN CLAIM 31. AND SO THE ANSWER IS, YES, OF COURSE NOT, THEY DON’T.
    Q GOING TO THE NEXT SLIDE, SO DOES ECHOSTAR’S INDEXING CHANGE MAKE THE CURRENT PRODUCTS MORE THAN COLORABLY DIFFERENT FROM THE PRODUCTS AT TRIAL?
    A AGAIN, OF COURSE NOT. INDEXING ISN’T EVEN PART OF CLAIMS 31 AND 61. AND EVEN IF SOMEHOW IT WAS REQUIRED IN SOME VAGUE WAY, WE JUST MENTIONED THEY STILL –- STILL HAVE IT.
    Q OKAY. WE ARE –- STAY ON SLIDE 29, PLEASE. SO –- SO WE JUST SPOKE ABOUT INDEXING AND COLORABLE DIFFERENCES. WE ARE GOING TO COME BACK TO THE BUFFERING CHANGE, BUT FIRST WE SHOULD ADDRESS THE IMPACT ON INFRINGEMENT, IF ANY, CAUSED BY THE INDEXING CHANGE. SO NOW WE CAN GO TO SLIDE 30. DOES
    ECHOSTAR STILL MEET THE PARSING LIMITATION IN CLAIMS 31 AND 61?
    A ABSOLUTELY.
     
  14. Mar 11, 2009 #914 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    Interesting, so far it seemed this hearing was only about TiVo's lawyer asking TiVo's witness questions:)
     
  15. Mar 11, 2009 #915 of 1468
    nobody99

    nobody99 Icon

    807
    0
    May 20, 2008
    There's 546 pages. Curtis has only picked out a few. There's plenty more juicy stuff to come.
     
  16. Mar 11, 2009 #916 of 1468
    nobody99

    nobody99 Icon

    807
    0
    May 20, 2008
    Speaking about the internal memos and documentation, it appears that DISH did a bulk search-and-replace and looked for the word "parse" and replaced it with "brute force"

     
  17. Mar 11, 2009 #917 of 1468
    nobody99

    nobody99 Icon

    807
    0
    May 20, 2008
    Hmmm...this seems to address your concern.

     
  18. Mar 11, 2009 #918 of 1468
    jacmyoung

    jacmyoung Hall Of Fame

    6,544
    0
    Sep 8, 2006
    Please, TiVo is saying because the PID parses the incoming data, it is now that infamous "physical data source". But does the PID filter build that index? He said even if the PID filter does not build that index, it still does the same thing.

    Really? What does the PID do then? And after the PID does it, where does it "temporarily store" whatever it does? And if it does not do it, then it cannot "temporarily store" it, can it? Then how is that "source object" able to "extract" whatever it is to do any DVR trickplays? Without all these, can TiVo honestly expect the judge to agree that it is substantially the same?

    Now TiVo is saying but the word "index" is not in claims 31 and 61, therefore the change of "indexing method" is irrelevant, therefore the difference is only colorable.

    But then they go on trying to "prove infringement by clear and convincing evidence" (as the law requires them to) and guess how they do it?

    Yes, finding from a pile of email in which one of them says the E* new software still eventually has some index to do DVR trickplays, so you see, they still use an index somehow, so they still infringe.

    Hello? Didn't TiVo just say from a minute ago that "indexing" was irrelevant to the claims? So how could they use it to prove infringement? What is it? Please make up their mind. The truth is, TiVo knows "indexing" is relevant, not only it is relevant, it is the "core of the invention", they needed it to prove infringement back then, and need it now.

    And where is that so called "claim chart" TiVo was talking about Curtis52? That should be easy to spot.

    When E* complained about TiVo not providing enough disclosures, TiVo said but they were busy reading E*'s disclosures and preparing a "claim chart", you know the one commonly used to prove infringement, which TiVo did in the previous trial.

    Where is it? TiVo needed such chart to prove infringement by preponderous of evidence back then, now TiVo is carrying a heavier burden of proof by clear and convincing evidence, and they forgot to produce that chart?

    So far I am only going by the quotes which are very selective, intended to only show TiVo's point of view, not E*'s point of view, and I have already pointed out how TiVo had failed their test.
     
  19. Mar 11, 2009 #919 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    The infringing DVR's had an index file, created on the fly, so the media switch can run along with the trick plays.

    It is immaterial to claims 31 and 61.
     
  20. Mar 11, 2009 #920 of 1468
    Greg Bimson

    Greg Bimson Hall Of Fame

    3,918
    0
    May 5, 2003
    Asked and answered a thousand times over...

    The PID filter parses the broadcast data, separates it into audio and video, and holds it into a temporary buffer before writing to disk.

    I've yet to see an argument regarding source object, so I will defer on argument there, other than to state if there is no source object, there would be no DVR functionality.
     
Thread Status:
Not open for further replies.

Share This Page