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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. bobcamp1

    bobcamp1 Icon

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    Yes. And that's all I can say about the subject, since I was involved in just such a case. (I actually had to check with a lawyer before I posted that previous sentence. Sigh.).

    Actually, Dish's products are all "new" in the eyes of the court. It's not like the injunction was already in effect when the very first infringing DVR was released by Dish. I think you are stuck on a moot point.

    And all that will happen on Sept. 4 is the judge will rule if his injunction should now be (not "meant to be", see Appellate Court ruling) taken word for word, letter for letter, or if there is a little wiggle room. Whoever loses will appeal, and Tivo will file a motion for contempt either way (and this outcome can be appealed). Note that E* doesn't have to initiate anything. An infringing company can continue to violate the injunction, and if the other company doesn't file for a contempt motion it cannot collect additional damages.

    The second point that some people are stuck on is the injunction wording. The exact wording doesn't matter. If the judge orders E* executives to kill their first born sons, they don't have to follow it even if the judge later finds them in contempt. The Appeals Court would eventually overturn the injunction (or at least provide clarification on it or modify it in less extreme cases). And if they don't, there are laws that prevent E* from carrying out the injunction. The injunction takes a back seat to existing case law and laws, not the other way around.

    I'm not a lawyer. I just see more of them than I want to.
     
  2. Greg Bimson

    Greg Bimson Hall Of Fame

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    But what about adjudicated products, the eight models listed as "Infringing Products"? That case law talks about modified products, not adjudicated products.
    Once again, those are modified products, not adjudicated products.

    Even with a modification in the field, they are still adjudicated to be infringing. Something must happen within the court system for that to change.

    The 4 September hearing is rather clear. What should happen to the adjudicated products, which are defined in the injunction as "Infringing Products"? At face value, the injunction says to disable them.

    DISH/SATS needs to do something to have those "Infringing Products" no longer considered infringing, and therefore, would need to have to file something with the court. And it more than likely would have to be separate from a contempt hearing. What would that be?
     
  3. TexasAg

    TexasAg Legend

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    May 27, 2008
    As far as I'm aware, there is no such type of hearing that the Texas court would have. It would be during the contempt hearing where Echo could argue it is no longer infringing and so shouldn't be held in contempt. Are you asking about the Delaware thing? Because that doesn't help here - if Echo is no longer infringing, it shouldn't be held in contempt regardless of whether a declaratory judgment trial is ongoing elsewhere.
     
  4. kmill14

    kmill14 Godfather

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    Jun 12, 2007
    E* also decided to neglect the same quote that I put in front of you and jacmyoung, that shows CLEAR seperation from adjudged devices AND others "not more than colorably different".

    E* is well within their rights to design around TiVo's patent, and construct a modified device and then sell it to their customers. However, KSM (and the Appeals Court in later cases) is quite clear in seperating adjudged devices from "other" devices. Otherwise, why this phrase:

    *****
    “contempt proceedings . . . are available only with respect to devices previously admitted or adjudged to infringe, and to other devices which are no more than colorably different therefrom and which clearly are infringements of the patent
    *****

    Why don't you break that phrase down for me and tell me what it means to you, and then apply it to this case.
     
  5. kmill14

    kmill14 Godfather

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    Jun 12, 2007
    Well, that is certainly going to require another trial, won't it?

    But just like TiVo having to wait for THEIR vindication, E* will have to wait for theirs as well. While they go through a new trial, the standing order of infringement and disabling the DVRs will no doubt stand.
     
  6. TexasAg

    TexasAg Legend

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    May 27, 2008
    It means the original versions of Echo's DVRs (including the original software) are adjudicated devices, and Echo will always be subject to contempt proceedings if they ever use, sell, or make the original versions of those DVRs. It also means any product that is only colorably different from the original versions of Echo's DVRs (including the original software) can form the basis for contempt.

    You better be careful. You're basically admitting that whether Echo continues to infringe Tivo's patent is in doubt if Echo truly has modified its DVRs. And if continuing infringement is required to find contempt...
     
  7. kmill14

    kmill14 Godfather

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    Jun 12, 2007

    A) There is no proof that E*'s adjudicated devices are NOT infringing, only that they infringed.

    B) E* is subject to contempt proceedings for failure to obey the Court's Order

    C) The Court's Order specified specific products, not versions of software.

    D) The Court's Order specified that those specific products in the hands of End Users must be disabled. That Order contains no other verbage.
     
  8. TexasAg

    TexasAg Legend

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    May 27, 2008
    And if those products no longer infringe (or there is a reasonable question about whether they continue to infringe), and continued infringement is required for contempt, then what?
     
  9. kmill14

    kmill14 Godfather

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    Jun 12, 2007
    Does this scenario meet the Court Order?

    A) John Doe has possession of the DP-501, with DVR capabilities

    B) Court Order states that John's DP-501 must have its DVR capabilities disabled.

    C) E* uploads new software to John's DP-501.

    D) John's DP-501 still has its DVR capabilites enabled.
     
  10. James Long

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

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    And yet that does not stop people from stating clearly what he meant. :rolleyes:

    The mention of "only colorably different" serves to expand the injunction on interpretation. These products and others "only colorably different". Not "all infringing DVRs". Another indicator of "overly broad" since there is no way to redeem the product and come into compliance as a DVR.

    And, as you note, that is overly broad. Charlie will "gamble" because he has a good hand.

    If Judge Folsom "folds" and doesn't find contempt DISH wins.

    Did I mention Charlie Ergen likes to play poker? Did I mention that Mr Ergen is a pretty good businessman?
     
  11. kmill14

    kmill14 Godfather

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    Jun 12, 2007
     
  12. kmill14

    kmill14 Godfather

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    Jun 12, 2007
    James,

    Which part of THIS order is overly broad:

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    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.
    *****
     
  13. TexasAg

    TexasAg Legend

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    May 27, 2008
    Wow, it really is "only read the injunction, consider absolutely nothing else," isn't it? No context at all. No other considerations at all.

    Do you consider the judge's order granting the injunction (and mentioning ongoing infringement as justification) relevant? Or the case jacmyoung cited about preventing future infringement? Or the law that says injunctions are issued in patent cases to prevent future infringement? Does any of that matter at all?

    In answer to your question, if the DP-501 is no longer infringing, then no, I don't believe it is subject to the injunction.
     
  14. Greg Bimson

    Greg Bimson Hall Of Fame

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    Is continued infringement required for contempt on a "prima facie" violation? I think we should revisit what this contempt hearing is about...
     
  15. nobody99

    nobody99 Icon

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    May 20, 2008
    So the concept of equitable relief, in the context of the court discussion TiVo's lost market share and "sticky customers" means nothing either? Is there even the slightest possibility - the slightest - that the eight named DVRs could have their DVR functionality turned off permanently legally through an injunction? Can you show me in rule 65(d) that says an injunction must only apply to ongoing infringement?

    If you are going to have a one-side conversation, you don't need us.
     
  16. TexasAg

    TexasAg Legend

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    May 27, 2008
    I said before, to me it looks like it is basically a hearing to determine the proper standard. If Tivo's standard wins, I think the contempt hearing ends with a contempt finding since Echo will probably acknowledge at the hearing (or beforehand) that the DVRs remain operational. If Echo's standard wins, I think the contempt hearing ends with an order for more discovery. And I think the answer depends on whether you feel a modified DP-501 is adjudicated infringing or not. I don't think we'll know which standard applies until 9/4.

    Rule 65(d) specifies how injunctions are written. It is unrelated to the patent laws in any way. And jacmyoung has already posted a case about ongoing infringement. Again, I think the answer here depends on whether you feel a modified DP-501 is adjudicated infringing or not. I don't believe you can say it is adjudicated infringing and simply assume that the infringement continues even after the modification. Gotta run. Check in later.
     
  17. TBoneit

    TBoneit Hall Of Fame

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    Jul 27, 2006
    I find myself torn between whether the longevity of this thread is because one side has E* boosters and the other side has Tivo and/or D* boosters or E* haters. Or something else.

    Personally I'd like to see this thread locked as it has become cumbersome in size and a new one with strict restrictions started. 76 pages! I can not see someone wading through all 76 pages if they stumble onto this message thread.

    The curent title of "TiVo vs Echostar ... Discussion leading to September 4th Hearing" seems to have degenerated into a infringing vs not infringing, yes it does, no it doesn't contest where whoever carries on the longest feels they've won.

    There have been some good points on both sides, however they're being beaten to death and beyond.

    Sorry if I step on anybody's toes but it seems as if this thread has become a tool to hurt E* DVR sales with F.U.D. And I don't think personally it can effect sales enough to matter when compared to some of what passes for an advertisement from D*.

    I for example would never sign up in todays market for D* as I have a dislike for their current round of commercials.
     
  18. kmill14

    kmill14 Godfather

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    Jun 12, 2007
    Texas,

    So you think it is up to E* to take a clear and concise order as I described and put their own spin on it based on what they THINK was the spirit of the order?

    I am picturing a scene from "A Few Good Men", with Kaffee questioning Kendrink on the different types of orders...peace time orders verses war-time orders. Do they tell the Marines to apply different sets of standards in following orders?

    I wonder if the Courts do?

    "Your Honor, we know you told us to JUST disable the DVR functionality, but we didn't think you really meant that. We've put some new software in you see, and we claim that it makes the devices that were found to infringe to no longer infringe. Thats OK, right? Its not what you specifically asked us, but its OK, right?
     
  19. scooper

    scooper Hall Of Fame

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    How about all that that I just Bolded ? Because that impacts us users out in the field.
    It's amputating the arm for what should be a pinprick.
     
  20. kmill14

    kmill14 Godfather

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    Jun 12, 2007

    Contempt proceedings are clear regarding three elements that must be met:

    1) the order which the contemnor violated was clear and unambiguous,

    (disable the DVR functionality in the 8 adjudged products that are in the hands of end users)

    2) proof of noncompliance is clear and convincing and

    (the DVR functionality of those 8 products is still enabled)

    3) the contemnor has not diligently attempted to comply in a reasonable
    manner.


    I suppose E* will try to say that they have complied in a reasonable manner by uploading software they "feel" is non-infringing. Of course this has nothing to do with the order to "disable the DVR functionality".

    Given the nature of this case and the clear and unambiguous order (disable the DVR functionality), I can't see the Judge going against his own order.
     
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