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TiVo vs EchoStar: Echostar found to be in Contempt

Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.

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  1. Jul 23, 2009 #781 of 2012
    jacmyoung

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    After stating my view earlier which case law was controlling, now let me address that particular point above which is valid.

    The three-part test of the Fifth Circuit case law says:

    However for the order to be in effect, one of the prerequisites is that the order must be clear and concise, cannot be reasonably misunderstood by the respondent.

    To answer that, let me first quote Judge Folsom's own words:

    Here even the judge himself understood his injunction was to prohibit future infringement only. Therefore, when E* tried to interpret his injunction, it is reasonable for E* to interpret the disabling order to be limited to "Infringing Products", not "infringing and no-longer-infringing products". Because as the judge correctly stated, his injunction was to prohibit "future infringement", it is most certainly reasonable for E* to interpret the disabling order to prohibit the use of the DVR functions that continued to infringe in the future, not whether they infringed in the past. If they managed to modify the DVRs into non-infringing DVRs, therefore rendering the once infringing DVR functions in the past, into non-infringing DVR functions in the future, the disabling order would no longer apply.

    Now you do not have to agree with E*'s interpretation, that is not the point, the point is, was the judge's disabling order so clear as to the point that E* could not possibly have made the above interpretation?

    If the answer is a no, then his order was not clear enough. He should have said: "to disable the DVR fucntions (i.e. disable the storage and playback from the hard drive...) from the Infringing Products, whether those products still infringe or not."

    An order that is not absolutely clear and may in any way, shape and form lead to misinterpretation, is an order that is not effective. If it is not effective, the above three-part test has failed.
     
  2. Jul 24, 2009 #782 of 2012
    Greg Bimson

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    I can definitely support that there are differences, as they have different code. I just cannot support that Joe Blow's five-year old 625 is legally a different device simply because new software was downloaded to the receiver. The injunction said to disable the Infringing Products installed with an end user as of 8 September 2006. Even DISH/SATS did not make the argument they are legally different devices; they simply said that they complied with the disable order because:

    1) They disabled the Infringing Products (for an instant) while downloading new software
    2) They are no longer Infringing Products because the new software doesn't infringe.

    If DISH/SATS had argued they would have complied with the disable order but they no longer had any Infringing Products, then that argument could have been taken to the Court of Appeals. DISH/SATS never argued the download made them legally different devices. They certainly now cannot argue it in front of the Court of Appeals.
    I am unsure about that. Sure, KSM mentions "legallly different" in the context that there is a comparasion between the adjudged and the accused devices. But the finding of infringement on eight models of DVR targets each unit, as if there was an "Infringing Product" sticker placed on it. That means the unit was adjudged. That unit cannot be simply retried for infringement as it has been found guilty of infringement.

    It is an argument that has a problem with "Double Jeopardy". Does the downloading of new software simply make Joe Blow's five-year old 625, adjudged as an infringement, a different "device"? The functionality may be a bit different, but does it make it a different "device"? Either way, DISH/SATS did not make that argument during the entire contempt process. They simply stated they had new software that no longer infringed.
    Ahh, but if we remember, KSM was a consent decree, and we've never seen anything else that was in the "injunction". If the only injunction item in the consent decree was an order against infringement, then of course it is an injunction against infringement. However, if there were other orders, then I would question what exactly an injunction against infringement is.
    To "prohibit future infringement only." Really? I'd re-read that, cause I don't see where the injunction can only prohibit future infringement...

    It appears Judge Folsom recognized that the Federal Circuit doesn't like vague injunctions regarding "future infringement", so the injunction was crafted to target "particular infringing devices". Specifcally, the ones adjudged as infringements were to be disabled. The injunction also prohibits future infringement. In other words, injunctions in patent infringement cases do not only deal with "future infringement", it appears injunctions also deal with devices adjudged infringing.
    But only if the respondant redefines terms. The respondant redefined "Infringing Products". There is no conflicting definition, no matter what argument may be used for it.
     
  3. Jul 24, 2009 #783 of 2012
    scooper

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    What's the difference between Joe Blow's 5 year old 625 with updated software and a brand new off the production line 625 with the same software ? - Answer - 5 years of use, but that's it...

    Yet - by your logic - these are legally different devices. I got a problem with that. Two devices identical except for date of manufacture are not the same legally ? Apparently the court has a problem with your definition also, because they make no distinction based on manufacture date either.
     
  4. Jul 24, 2009 #784 of 2012
    Curtis52

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    Inanimate objects can't be found guilty of anything.
     
  5. Jul 24, 2009 #785 of 2012
    jacmyoung

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    What are you talking about? From day one they said the modified DVRs no longer infringed, as legally different than the "Infringing Products".

    What are your talking about? On an issue that is new and never argued during the trial, of course you argue at the district court level, then argue on appeal.

    Please go read again, they argued over and over because the appeals court said software and hardware must be considered together, therefore if the software is non-infringing, so is the hardware, in fact they also argued the software does not only perform software functions, it also performs hardware functions that related to the patent and were modified.

    The purpose of an injunction is to prohibit "future infringement" no more no less, even Judge Folsom said that as I quoted him earlier. An injunction can have one provision, or two, or three or even ten separate provisions in it. In fact I can count about 6 provisions in the 6/3/09 injunction, including the three specifically cited by the appeals court.

    They all must service a single goal, to prohibit "future infringement".

    It is not what I said, it is what Judge Folsom said.

    Don't change his words. Injunctions are not "regarding" future infringement, rather to prohibit future infringement.

    Don't add word to his words, he never said "the injunction also prohibits future infringement."

    Please provide proof that an injunction does not only deal with future infringement, if it "appears" to you so, it will not work because what "appears to you" is not proof by clear and convincing evidence.

    How is it redefining when E* said the term "Infringing Products" means the products that infringe on the patent, it does not mean any products that do not infringe on the patent or if they no longer infringe on the patent?

    What part of the above is redefining the term "Infringing Products"? Again we are talking about this specific term, and this term only.

    Now here is again another "on alternative" argument. Let's just assume you are correct, that an injunction may prohibit more than future infrignement, but please still read what the judge said about as I quoted:

    When he discussed his disabling provision, he clearly defined the purpose of his such provision as to prohibit future infringement, if you simply read it.

    So regardless what you believe what other purposes his injunction may serve, the judge himself had stated in black and white that his disabling provision is to prohibit future infringement.
     
  6. Jul 24, 2009 #786 of 2012
    Greg Bimson

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    Okay. Like I said, words have meaning...

    That unit cannot be simply retried for infringement as it has already been adjudged as an infringement.
    The court ruled that Joe Blow's 5 year old 625 is an infringing device. Judge Folsom said it infringed the patent. The new, just-off-the-line ones manufactured have also been found as infringements and merely colorably different than those adjudged.

    That is the main difference. The devices such as Joe Blow's 625 have been before the court, while the newer ones just recently went before the court. Technologically they may be the same boxes; legally they might not be.
    They changed the legal definition of "Infringing Products" to simply mean "products that infringe". The argument always was because they changed the software so that the products no longer infringe, an injunction cannot prohibit a product that doesn't infringe. The implication in their argument was that they no longer have any "Infringing Products", but they never simply stated that. Instead, they always attacked the injunction stating it cannot prohibit non-infringing products, not because they no longer have any "Infringing Products".

    It was as if DISH/SATS was a bit scared to make that argument.
     
  7. Jul 24, 2009 #787 of 2012
    Curtis52

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    That's the reason for the colorable difference test. A new trial is required if there is more than a colorable difference. Not allowed? Au contraire. A new trial is required if there is more than a colorable difference.
     
  8. Jul 24, 2009 #788 of 2012
    jacmyoung

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    How do you define Infringing Products then?
     
  9. Jul 25, 2009 #789 of 2012
    Greg Bimson

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    So adjudged infringing devices constantly get retried for infringement. That makes no legal sense.
    I don't. The court already did. And it has the definition given in the Final Judgment and Injunction Order.
     
  10. Jul 25, 2009 #790 of 2012
    Curtis52

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    No, only modified devices that have been through the process of determining whether they are legally different from the adjudicated devices get tried. There is no retrial involved.
     
  11. Jul 25, 2009 #791 of 2012
    Greg Bimson

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    Which devices are currently the adjudicated devices?
     
  12. Jul 25, 2009 #792 of 2012
    jacmyoung

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    Are you saying that the respondents are not allowed to interpret the term "Infringing Products"? Or that if they do they are "redefining" the term?

    If you say they are redefining the term, then tell us what is the correct definition of that term. Without telling us how to define it, then your order is not clear and not enforceable.

    Tell us what is its correct definition, as "given in the Final Judgment and Injunction Order."
     
  13. Jul 25, 2009 #793 of 2012
    Greg Bimson

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    It is a proper noun, defined in both the original and the amended final judgment and injunction order. It would be exactly like saying "Paris, France" is actually Buenos Aires, Argentina.
    It was defined in the final judgment and injunction order, so it is definitely clear and enforcable:
    Any other interpretation of "Infringing Products" is sheer folly.
     
  14. Jul 25, 2009 #794 of 2012
    jacmyoung

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    Very well then, if the court "declares" that the 8 named DVRs no longer Infringing Products, then they will no longer be Infringing Proudcts? I remember you said so before.

    Let me ask you this, if, and only if, the appeals court declares those 8 named DVRs no longer Infringing Products, are they not Infringing Products since 06 or 07 when the modification was implemented?

    If so, would E* still be in violation of the disabling order? That is if the appeals court declares those 8 named DVRs no longer Infringing Proudcts.
     
  15. Jul 25, 2009 #795 of 2012
    Curtis52

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    We won't know that until after the appeal.
     
  16. Jul 25, 2009 #796 of 2012
    jacmyoung

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    The 8 named DVRs are adjudicated products. They were adjudicated as infringing products during the trial, and again during the contempt proceeding. Though I agree the contempt proceeding is not over yet until the appeal is over.

    If the appeals court later rules that the adjudicated products might not be infringing products anymore, then E* will not be in violation of the injunction, including that disabling order.

    That makes the term "Infrinigng Products" the key term as far as the disabling order is concerned. Now had the judge used the term "Adjudicated Products" instead, it would have been a lot different. Because the term "adjudicated products" at least appears it does not separate infringing products from non-infringing products, as long as they once had been adjudicated to be infringing, whether they were later again adjudicated to be infringing, or not, one may insist they are adjudicated products regardless.

    But then had the term "Adjudicated Products" being used, E* would likely have appealed the wording last time and the appeals court would likely have ordered the term narrowed down on remand.
     
  17. Jul 26, 2009 #797 of 2012
    Greg Bimson

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    The Court of Appeals would not declare those 8 named devices are no longer Infringing Products, but may declare those 8 named devices no longer infringe. The Court of Appeals does not redefine; they simply affirm, reverse, or a combination thereof, and can remand the case back to the District Court for more action.
    Why, is the Court of Appeals going to adjudge the devices or simply make sure the findings by the judge are consistent with law, case law, and the arguments presented by the parties? Because I am fairly certain that the Court of Appeals is not going adjudge the devices but simply adjudge whether or not Judge Folsom's findings are correct, which may involve a cursory glance at the devices, but only through the arguments presented by the parties.

    I am also certain that the finding of contempt was not stayed, but the Court of Appeals certainly can reverse it.

    I am also certain that any finding reviewed by appelate courts is simply considered as that finding until a higher court reverses it, if that happens.
    It doesn't matter. The term "adjudicated products" wouldn't matter, because it would have no bearing on the defined proper name "Adjudicated Products".

    Just as there is no legal way to to associate the term "infringing products" to the defined term "Infringing Products".
     
  18. Jul 26, 2009 #798 of 2012
    jacmyoung

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    How is that the appeals court may declare the 8 named DVRs no longer infringe, yet it is not possible for them to say they should no longer be defined as Infringing Products? Does it even make sense to think they may determine the products no longer infringe, but still define them as Infringing Products?

    What is your basis? Can you cite us a case law that says that? Oh I forgot, you do not need to cite anything.

    The appeals court goes through great length to discuss the technical details of the products, the specifications, to determine if the district court finding is correct or not. The appeals court adjudge the products all the time on appeal, just read the last appeal decision and other appeals court similar decisions.

    In fact the more you read the appeals court decisions, the more it seems the opposite is true, often times it was the district court that failed to analyze the products carefully enough, rendering a contempt decision, only on appeal, after the appeals court took its time and analyzed the products in greater detail, did they overturn the lower court decision.
     
  19. Jul 27, 2009 #799 of 2012
    Greg Bimson

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    I guess I should quantify the statement:
    Unless DISH/SATS asks the CoA to look at the term "Infringing Products" and is able to convince them it is incorrect, then the CoA will reverse the injunction and have Judge Folsom re-issue it. If the CoA feels that the products no longer infringe, they will state the reason why those products no longer infringe and then mandate Judge Folsom amend the injunction.

    What I am getting at is the Court of Appeals will only consider only the arguments from the last proceeding, and then only those arguments that are appealed.
    And I should have chosen my words more appropriately. They will only adjudge the products in concert with the actions before Judge Folsom. It will not be a full-blown evaluation of the products like it was before Judge Folsom. It will be an evaluation of how those products were evaluated. For example:

    The Court of Appeals was persuaded that the guilty verdict regarding literal infringement of the Hardware Claims was incorrect. DISH/SATS main argument was that it could not be literal infringement as something to do with the storing "video and audio data" language didn't sit right with the CoA. So they reversed the finding on the Hardware Claims, affirmed the finding of guilt on the Software Claims and remanded the case back to Judge Folsom for any other outstanding issues.

    The Court of Appeals usually simply affirms or reverses the lower court's findings. On an even less likely basis, the Court of Appeals will occasionally mandate a lower court to do something. But the only evaluations that can happen are with respect to the evidence presented and any arguments that legal procedure was not followed with respect to that evidence. The only case in point I need to give about this is DISH/SATS is arguing KSM wasn't applied at all. When the CoA judges see that, they'll have a field day.

    The Court of Appeals will "adjudge products", but only when asked and only in relation to how they were presented before the District Court. The full blown evaluation has passed, now it is time to determine if there was any legal issues with that evaluation against the standards of law.
    Now I'll agree with that. Best example is StarBrite. The product wasn't even evaluated; the patentee asked for contempt simply because the infringer kept using the names of the products found infringing even though the formula for the boat polish was changed.

    However, in this case, there was a full-blown evaluation of the adjudged devices against the modified devices. That is what concerns DISH/SATS. Read both TiVo's and DISH/SATS' motions to the Court of Appeals, and it reads like there are two different cases. That's why DISH/SATS' entire motion contains all references from the trial regarding the finding of infringement of the Hardware Claims.
     
  20. Jul 27, 2009 #800 of 2012
    phrelin

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    Boy did I underestimate in my quantifying the post potential here. 800 and counting. :lol:
     
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