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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 5, 2008 #1321 of 2549
    nobody99

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    Nope, didn't notice that. But the "more than colorably different" concept is from 1904 right? So my example is not that much older :)

    I hope you realize that I'm not trying to prove that I'm right. I'm only trying to raise the possibility that an existing product that has been adjudicated to infringe perhaps will be treated differently than a new product.

    You can accept this possibility, yes?
     
  2. Jun 5, 2008 #1322 of 2549
    TexasAg

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    The courts still use the "more than colorably different" concept.:)

    Seriously, the patent laws have been rewritten several times since 1885, and the laws/cases on damages have changed. I honestly don't think unjust enrichment is used any more - it's always lost profits or reasonable royalty. To get unjust enrichment, you have to make a state law claim, and you can't be seeking "patent-like protection" for something by making the state law claim (if you do, it is preempted by the federal patent laws). The "more than colorably different" standard is applied by courts all the time today.

    Of course. We both agree that we could be wrong. If it was a clear-cut issue, Tivo or Echo would have folded long ago.
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  3. Jun 5, 2008 #1323 of 2549
    kmill14

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    Maybe it's time to look at the injunction itself in more detail, since people seem to have differing views of its meaning:


    *************
    Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different there from in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the ‘389 patent.

    Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products.
    **************


    Nowhere in the injunction does it say that E* can alter the infringing DVRS to be "more than colorably different." It just says they need to be shut down.


    And now the judge explains the reasoning for the injunction:


    **************
    Plaintiff’s primary focus is on growing a customer base specifically around the product with which Defendants’ infringing product competes. And, as Plaintiff is a relatively new company with only one primary product, loss of market share and of customer base as a result of infringement cause severe injury. Thus, the
    Court concludes that the full impact of Defendants’ infringement cannot be remedied by monetary damages.

    **************

    Clearly, the Judge feels that money alone will not solve the problem and the injunction (shutting off the DVRs) is part of the process that will allow TiVo to regain market share lost due to E*'s infringement. This is the most important part of why the Judge will continue to side with TiVo. E* gained an unfair advantage in TiVo's only market due to their infringing products. As such, part of the penalty E* must pay is to turn off those products that were identified as infringing, regardless of any future alterations to them.


    Lastly, the Judge says this:

    ***************
    Without a stronger showing that the jury’s verdict will be overturned
    in its entirety on appeal, however, allowing the ongoing infringement is not within the public’s interest.
    ***************

    Well, the verdict was not overturned in its entirety, and there is no reason for the Judge to feel differently about allowing infringing products to stay in circulation.
     
  4. Jun 5, 2008 #1324 of 2549
    Herdfan

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    Only because they thought they would not get caught. They started a "partnership" with TiVo, had TiVo code and boxes, then kicked TiVo to the curb. They did not come up with this infringing idea on their own.
     
  5. Jun 5, 2008 #1325 of 2549
    Herdfan

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    Is it ongoing with the new software?

    At what point can TiVo ask for a retrial on the hardware claims? DISH does not look like it is going to blink, so TiVo needs the hardware verdict to make them.
     
  6. Jun 5, 2008 #1326 of 2549
    TexasAg

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    There's that pesky word. "Infringing" products. Most people want to read that word out and say that the Echo DVRs have to be turned off regardless of whether the current software infringes Tivo's software claims. But if Echo can argue that the DVRs are not infringing (and it isn't a clear cut issue, meaning the new software is more than colorably different), they should not be held in contempt.

    There it is again - ongoing "infringement". And what if there is no "ongoing infringement"? And don't you think Echo should be able to show that there is no "ongoing infringement"?
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  7. Jun 5, 2008 #1327 of 2549
    kmill14

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    You are missing the point. The Infringing Products are ALWAYS the Infringing Products. They got into the customers' homes as Infringing Products, and made it impossible for TiVo to grow its own business.

    Again, nowhere in the injunction does it say the Infringing Products can be altered and NOT be shut off. They just need to be shut off, for the reasons explained above.
     
  8. Jun 5, 2008 #1328 of 2549
    TexasAg

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    No, you are missing the point. The Echo DVRs infringed the software claims only (as of this point). If Echo can replace the software appropriately, the products may no longer be "infringing."

    Let me ask you this - could Echo sell new DVRs with the new software and not violate the injunction?
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  9. Jun 5, 2008 #1329 of 2549
    kmill14

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    The last sentence is not part of the actual injunction, but part of the Judge's reasoning for not granting a stay. I added it to the discussion to portray what I imagine the Judge is thinking.

    The wording of the injunction is clear. E* can have a seperate trial if it wants to argue that these Infringing Products are no longer Infringing Products, but until that trial is complete, they are STILL Infringing Products.

    The Infringing Products, for all intents and purposes, have been put in jail aftering having been found guilty, and having that guilt affirmed. They can certainly present new evidence or plead to the court that they deserve to have their sentence shortened, but until that order is granted, the products must remain in jail.
     
  10. Jun 5, 2008 #1330 of 2549
    Herdfan

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    But is Microsoft entitled to keep those billions? If the answer is yes, that seems to dilute the entire patent system. Large companies could do nothing but to "steal" the patents of small companies, use them to make billions, and if caught, pay a small royalty fee.

    Somewhere that doesn't seem right.:(
     
  11. Jun 5, 2008 #1331 of 2549
    TexasAg

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    And the case law saying that is where, exactly?

    See, if have plenty of cases that say an infringer is entitled to design around a patent, an infringer is allowed to release modified products and not be held in contempt if the modified products are "more than colorably different," etc.

    Referrals to bail jumping, violating protective orders, criminal trials, etc. do not apply. Echo does not need the court's permission to release a modified product that is "more than colorably different." Echo is entitled to do so and cannot be held in contempt for it.
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  12. Jun 5, 2008 #1332 of 2549
    jacmyoung

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    Adding to what TexasAg said, nowhere does it say DISH can not alter the Infringing Products into modified products and continue as before. Please go back to read a case law I cited where the infringing drug company decided to apply a patent for its drug under injunction, and when the judge ruled the infringer in contempt, the appeals court overturned the ruling, because nowhere in the injunction did it say the infringer could not apply a patent on the enjoined drug, which was already patented by the winning company, and what the patent the infringer was seeking was exactly the same already awarded to the winner, so the act of the infringer was clearly not in good faith, but nevertheless the court could not prevent it from such act because the injunction did not specifiy that the infringer could not apply a patent, any patent.

    In this case, the injunction never said DISH may not modify the Infringing Products and continue as before, not to mention on the surface DISH's act of modification seems in good faith and is a legitimate effort to workaround the patent.

    Again, some insisted that DISH never disabled the DVR functions as required by the injunction, but in fact they did, during the time when the new software was downloaded, the DVRs were totally disabled, and after the re-boot, they became modified procducts (no longer the "Infringing Products") and continued as before.

    So long as we can agree on one thing, that the Infringing Products are different than the modified products today, no matter how little the difference, as long as such difference "gives rise to fair ground the doubt whether the modified products are still within the scope of the injunction", as long as such doubt exists, the infringer gets the benefit of the doubt.
     
  13. Jun 5, 2008 #1333 of 2549
    kmill14

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    Sure they can. But if they want to put that software into the old, Infringing Products, they need to argue to the Court that their old products can be let out of jail. Thats part of the pentalty of infringement.

    And as you know, this contempt hearing will be legal only, which I assume means they will digest the wording of the injunction, and the topic of colorably or more than regarding new software will not be discussed at all.
     
  14. Jun 5, 2008 #1334 of 2549
    nobody99

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    Oh, Puh-lease. You've made some good points in the past, but this is so far beyond stretch that you're going to start spraining muscles badly.

    Here's the actual language of the injunction:

    You are a lawyer (and for the record, I'm not) but whereever anyone says "Infringing Products" it does NOT mean "any product that is infringing." It means exactly - no more or no less - DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942. Rather than using the terminology [collectively the “Infringing Products”], they could have used "The Handlebar Mustaches". Then whenever we said that "The handlebar mustaches must have their DVR functionality turned off" that means that DVR functionality must be turned off for DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.
     
  15. Jun 5, 2008 #1335 of 2549
    TexasAg

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    Didn't say it was right, and for willful infringement you could get triple damages. If the royalty rate is high enough, you might get a billion. That'd make me happy!__________________
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  16. Jun 5, 2008 #1336 of 2549
    TexasAg

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    I appreciate it, but the only muscles I've sprained were unrelated to this thread.

    Yes, and I believe Echo actually insisted that the word "infringing" be used in the injunction to describe those models. Wonder why they did that?
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  17. Jun 5, 2008 #1337 of 2549
    kmill14

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    Absolutely they do, because the Injunction said to turn off the DVR functionality on the Infringing Products, which are still infringing until they are proved otherwise. The Judge is proving that out by dealing with the contempt proceedings BEFORE any discussion about a "more than colorably different" software begins. You can argue that your DVRs no longer infringe, and as such get to be turned back on, but you first need to turn them off. We'll then have a nice trial to argue the merits of this new software of yours.
     
  18. Jun 5, 2008 #1338 of 2549
    nobody99

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    My guess - to confuse things later. But seriously, you can't honestly think that any reasonable judge is going to be confused by the language are you?

    "Infringing Products" doesn't mean "infringing today" or "was infringing last year" or anything else. It means one thing, and only one thing:

    DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942

    New software, old software, in the warehouse, at the customer's site. That's what "infringing products" means.
     
  19. Jun 5, 2008 #1339 of 2549
    kmill14

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    Actually, it specifically said they cannot continue as before, because the order was to disable the DVR functionality and never be sold again. Well, they were sold again, and they are all still running.

    I wonder if the Judge will go model by model, and ask if any of those model products are still in service. What will E*'s response be?
     
  20. Jun 5, 2008 #1340 of 2549
    TexasAg

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    jacmyoung has raised this before, but I don't think anyone has answered. Where is Echo prevented from turning back on the DVR functionality once new software was installed?

    See, this is what I imagine Echo's position is:

    (i) The listed DVRs have been found to infringe (only due to the software at this point), and we are instructed to turn off the DVR functionality on the listed DVRs.

    (ii) We turned off the DVR functionality for a little while.

    (iii) We then installed new software on the "infringing products" and turned the DVR functionality back on in our "modified devices."

    (iv) The "modified devices" are more than colorably different, so we don't violate the injunction.

    The original "infringing products" no longer exist. There are currently (I assume) no Echo DVRs receiving Dish service with the old infringing software. There are only the new "modified" DVRs running the new software.

    Can you say without any question that the DVRs currently running the new software are "infringing products" without only saying that the model numbers on the outside of the boxes are the same?

    You better hope not. The courts have said an infringer is "entitled" to modify a device and not be held in contempt.
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