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TiVo vs Echostar ... Discussion leading to September 4th Hearing

Discussion in 'General DISH™ Discussion' started by Curtis52, May 17, 2008.

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  1. Jun 4, 2008 #1261 of 2549
    Greg Bimson

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    Until the expiration of the Time Warp patent. Or at least that is what the injunction says.
     
  2. Jun 4, 2008 #1262 of 2549
    Grandude

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    Wow, I'm glad you guys have figured out what is going to happen. I am so relieved.
    1261 guesses and counting.........................
     
  3. Jun 4, 2008 #1263 of 2549
    TexasAg

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    How about what we asked earlier: If Echo had recalled all of the listed DVRs, put new software on them, slapped a new model number on them, and sent them back out, would that violate the injunction (assuming the new software is "more than colorably different)?

    In all fairness, it is more like 15-20 guesses repeated a lot.
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  4. Jun 4, 2008 #1264 of 2549
    jacmyoung

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    Realize that Tivo can seek new proceeding to find the new software still infringing, if so DISH will still have to pay the demages while using the new software, and be subject to new injunctive relief, and may be some fine.

    While it may seem a perpetual event, as long as the harm done to Tivo be paid, one way or the other, so who cares?

    What the law says, one must not be prevented from using innovation and workround, for the sake of protecting the patentee. If so it discourages legitimate advances and improvement of our society.
     
  5. Jun 4, 2008 #1265 of 2549
    jacmyoung

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    The “technical adviser” reference had nothing to do with the new software colorable difference discussion, it had to do with how to determine if a DVR, among the 192,000 units allowed to continue to infringe, needed repair or swapping, can another infringing DVR take its place as long as the 192,000 quota is not exceeded.

    DISH says yes, Tivo says no, because according to Tivo, once replaced, the replacement shall be judged by the “only colorable difference” test, and if the answer is yes, the replacement may not take place. The “technical adviser” suggested by the judge was to help resolve the difference between DISH and Tivo on this issue only, and both DISH and Tivo said it was not necessary, the above is only a legal issue, not a technical one.

    Like TexasAg said, Tivo only wants to discuss the contempt issue based on the face value of the injunction, nothing else, just like many Tivo people insisted here. DISH on the other hand insists all past case law, and the law itself to be used to determine the contempt issue.

    Because DISH is saying arguing on the face of the injunction is not helpful, because it does not address the intent of the injunction with regard to the law that governs how the injunctions should be administered, that is an injunction is to reflect the spirit of the law.

    Tivo in fact is not arguing much at all, only asking the judge to give his interpretation what the face of his injunction means. Whether he meant something that was not the usual intended purpose of an injunction according to the law, whether it means something unique, say just shut them off and never to turn them back on, just throw them away, kind of meaning.

    If you read carefully between the lines, you may realize even Tivo was not sure of the answer, they just asked the judge to clarify, which was why they wanted continued motion for limited discovery on the new software infringement issue in case the judge found DISH not in contempt solely on the face of the injunction. But such additional request was not appropriate because a contempt proceeding is not the right forum to address the new software infringement issue.

    The judge will of course clarify the face of his injunction issue in the next hearing, and like I said, he can offer any one of the three explanations above. Any one of them will be good enough to fit the face o the injunction.

    If he chooses 1, or 2 or 1&2, he is to likely found DISH not in contempt, and he will also be home free. No need to be subject to any more scrutiny.

    But if he insists 3, while he can found DISH in contempt, on appeal, the appeals court will still be faced with the same questions, except the appeals court will try to interpret the judge’s injunction for him, and the same issue about why there is not prior cases to go by in support of the #3 interpretation, why it seems against what the law said, and the intent of the injunction and workaround issue. Why all the sudden in this case somehow workaround is not allowed, what is so special about it that makes it able to defy the conventional wisdom, and is such action appropriate?

    I have read enough cases to bet on that it will be very likely the appeals court will come to DISH’s side. Because when in doubt, the defendant gets the benefit of it.

    There is a case I read about two drug companies (don’t remember the names), which I have used some time before. A sued B for patent infringement on the make, sell and use of drug C, A won the lawsuit, and an injunction was ordered on B to stop the making, selling and using…drug C. B later filed a patent application for the same drug C, despite the fact drug C was already patented by A. This act of B was clearly only to disrupt, because there was no chance B would ever get a patent on drug C, because A had the patent.

    A sought a contempt charge from the same judge, the judge agreed, issued a contempt ruling against B for filing such nonsense patent application. On appeal, the ruling was overturned, because the appeals court could not find in the language of the injunction that said B could not file a patent application, on anything, for any reason. B was allowed to file a patent application on anything, including on drug C, no matter how meaningless or disruptive it was, because the injunction did not say B could not file a patent application on drug C.

    Now one can argue the same here when it comes down to it, DISH can say to the appeals court, look we did disable the DVR functions, if only for just a few minutes, and after that time a modified DVR continued as before. We shall not be prevented from reinstalling DVR functions after the modification, because nowhere in the injunction did it say we cannot do that.

    DISH’s act may appear despicable to the Tivo users, it may appear DISH is trying to get away with murder by a clever procedure to defeat the judge’s injunction, but as long as such act is not within the scope of the injunction, it can not be stopped by the court.
     
  6. Jun 4, 2008 #1266 of 2549
    James Long

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    Per Tivo's filing for the May 30th meeting it DID happen ... but the judge shot them down. Of course at that time the hardware was also in violation ... hard to fix hardware with software. It made sense to just label the receivers themselves "infringing" without considering the software separately.
     
  7. Jun 4, 2008 #1267 of 2549
    James Long

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    If they were confident that motion 1 would be won why ask the court to help them with what would be motion two? Yes, there was a motion two. That's why they wanted the discovery ... so they could file motion two.
     
  8. Jun 4, 2008 #1268 of 2549
    James Long

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    That is for a court to decide. DISH obviously disagrees with you ... Tivo isn't even confident that they would win on that clear cut argument. :)
     
  9. Jun 4, 2008 #1269 of 2549
    James Long

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    Following that, a product that is ONLY COLORABLY DIFFERENT does not have to lead to a ruling of contempt ... it has to infringe as well as be only colorably different. :)
     
  10. Jun 4, 2008 #1270 of 2549
    TexasAg

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    I know. In addition to devices that are already adjudged infringing, contempt is appropriate for "other devices which are no more than colorably different therefrom and which clearly are infringements of the patent." Chances are very high, though, that an only colorably different product does infringe. Imagine trying to argue that an only colorably different product doesn't infringe, while the original product that is only colorably different does infringe. You could probably remove the 2nd IF statement and just say if it isn't more than colorably different then there is contempt.
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  11. Jun 4, 2008 #1271 of 2549
    James Long

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    That may be what DISH is banking on ...
    The current 501 isn't more than colorably different than the 501 ruled infringing.
    But the current 501 has new software and it itself is not infringing.
    The 501 could be a product "only colorably different" and non infringing.

    How can a court rule that offering a product is in contempt if the product doesn't infringe?
     
  12. Jun 4, 2008 #1272 of 2549
    TexasAg

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    I would argue that the current 501 is more than colorably different due to the new software (and Echo only infringed Tivo's software claims up to this point).
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  13. Jun 4, 2008 #1273 of 2549
    jacmyoung

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    If the judge goes beyond the “face of the injunction” against Tivo's wish, then he will have to look at the colorable difference issue between the old DVR501 and the modified DVR501, and of course the only difference will be the software, and of course he will have to determined if the new software is more than, or only, colorably different, compared to the old software. He cannot even discuss the new software infringement issue in the contempt hearing.

    A modified device more than colorably different can still infringe, but that does not matter, DISH will not be in contempt. A modified device only colorably different will cause DISH be in contempt, and at that point there is no need to even consider if the modified device still infringes or not, the question will be moot. They will not be able to use the modified device period, even if by some unlikely force it later can somehow be proven non-infringing.

    To find the new software more than colorably different, compared to he old software, will be very easy. I have done software coding, almost no two codes are mere colorably different, they almost always are more than, even if they do the exact same things.
     
  14. Jun 4, 2008 #1274 of 2549
    peak_reception

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    That's a fair point, that damages would still accrue, but in this case TiVo is a company which is desperately short on cash and may not make it through many more cycles of such cat and mouse litigation. It's very expensive and they haven't received a penny yet in damages that I know of.

    At the same time it may encourage and abet determined infringers with deep pockets.
     
  15. Jun 4, 2008 #1275 of 2549
    TexasAg

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    Which is what triple damages and attorneys' fees are for. That gets awfully expensive real quick.
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  16. Jun 4, 2008 #1276 of 2549
    sbiller1

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    They should have the money released out of escrow after their appeal to SCOTUS (I've read that its due July 18) is rejected. That would give them a large infusion of cash. Of course, they may have better things to do than spend it on lawyers.

    One question, if TiVo loses the contempt ruling based on colorably different, what is their next course of action? Do they pursue the hardware claims again? Do they pursue multiple avenues (i.e., HW and SW) simultaneously?
     
  17. Jun 4, 2008 #1277 of 2549
    scooper

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    Dish/Echo has already filed in Delaware on their new version of software, so that's taken care of. It's up to Tivo whether they still want to pursue the H/W claims.
     
  18. Jun 4, 2008 #1278 of 2549
    peak_reception

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    I'm not sure you're right about this. After the repair/swapping discussion came this on page 20, 20-25:

    THE COURT: ANY OTHER MATTERS? ((my emphasis))
    MR. MCELHINNY: NOTHING, YOUR HONOR.
    MR. CHU: THANK YOU.
    THE COURT: VERY WELL. I APPRECIATE EVERYONE –- OH,
    THE COURT DID NOT HAVE A TECHNICAL ADVISOR INITIALLY. WHAT ARE
    THE PARTIES’ THOUGHTS ON PERHAPS A TECHNICAL ADVISOR FOR THIS
    PHASE OF THE CASE? ((my emphasis; phase, meaning the contempt phase I assume))

    At least we can all agree on this. TiVo wants the injunction enforced as written. Echo views the injunction as no longer reflecting the real world situation due to the modified software they downloaded, and therefore now inapplicable as written.

    Didn't Echo try to get language into the injunction (before it was finalized) to the point that they should have opportunity to design around infringement issues? And wasn't that language rejected by the court? If so (I never saw the source of that claim) why would the judge reject that possibility if it is indeed an important pillar of patent law?

    Same question in reply as above. Thx.
     
  19. Jun 4, 2008 #1279 of 2549
    peak_reception

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    The key word is IF. A contingency.

     
  20. Jun 4, 2008 #1280 of 2549
    James Long

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    Sitting in an office an preparing filings for a contingency is good. Asking the court for preemptive discovery ... going fishing for information you don't need unless you're wrong ... isn't good.
     
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