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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. Aug 26, 2009 #941 of 2012
    jacmyoung

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    Yes he said that, I just do not have time to quote it for now.

    That was not the point, the point was, if the DVRs were allowed to continue to operate after a software download to disable the DVR functions, then the injunction would have allowed the products to continue to infringe, if and only if your assertion is correct that for the products to be non-infringing, the court must make that determination, before such, the products remain infringing. Keep in mind that had E* actually disabled the DVR functions, TiVo would not have accused E* of contmept for not disabling the DVR functions, and the court would never have the need to redefine those DVRs, and according to you, those DVRs would have forever been infringement, and yet still allowed to be used.

    If an injunction allows continued infringement, then the inunction is flawed and should have no enforcement power. Get one that does its job right first.
     
  2. Aug 26, 2009 #942 of 2012
    Curtis52

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    TiVo Files Complaints for Patent Infringement Against AT&T and Verizon Communications in United States District Court, Eastern District of Texas; Seeking Damages and Injunction

    * Press Release
    * Source: TiVo Inc.
    * On Wednesday August 26, 2009, 4:51 pm EDT

    ALVISO, Calif., Aug. 26 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News) today filed complaints in the United States District Court, Eastern District of Texas against AT&T Inc. and Verizon Communications, Inc. for infringement of the following three TiVo patents U.S. Patent Nos. 6,233,389 B1 ("Multimedia Time Warping System"), 7,529,465 B2 ("System for Time Shifting Multimedia Content Streams"), and 7,493,015 B1 ("Automatic Playback Overshoot Correction System"). The complaints seek damages for past infringement and a permanent injunction, similar to that issued by the United States District Court, Eastern District of Texas against DISH/EchoStar.
     
  3. Aug 26, 2009 #943 of 2012
    jacmyoung

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    It is TiVo's turn to make their pitches at the PTO, the first one of such effort was shut down, this one IMO is not nearly as big as the PTO's initial rejection. Though it should be a reality check for TiVo:)

    With regard to Curtis52's news, all I have to say is, I hope ATT and V* learn from E*, start to have the PTO reexamine those patents ASAP:)

    I have a feeling TiVo needed to do that maybe because the business side of it is not going too well, they can use some more distractions?
     
  4. Aug 26, 2009 #944 of 2012
    scooper

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    Answer me this - if the PTO issues a Final Ruling that claims 31 and 61 are invalid - would this also apply to any further suits that TiVo might bring ?

    I would guess yes, but would like a second opinion.
     
  5. Aug 26, 2009 #945 of 2012
    Ken_F

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    Nothing applies until the appeal's process is exhausted. At that point, any changes to the patent would certainly apply to pending litigation.

    It may be worth noting that TiVo's new ligitation against Verizon and AT&T adds two new claims that were not part of their 2004 suit against Dish Network:

    Multimedia Time Warping System (filed 7/30/1998, granted 5/15/2001)
    System for time shifting multimedia content streams (filed 2/20/2002, granted 5/05/2009)
    Automatic playback overshoot correction system (filed 5/13/2004, granted 2/17/2009)
     
  6. Aug 26, 2009 #946 of 2012
    Curtis52

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    If there is a final action from the patent office rejecting TiVo's patent prior to the lawsuit ball rolling very far, there would likely be a hold put on that part of the lawsuit. It's completely within the judges prerogative. If that happens, the lawsuits could continue on the other two patents.
     
  7. Aug 26, 2009 #947 of 2012
    scooper

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    Two additional PATENTS, not just claims...
     
  8. Aug 26, 2009 #948 of 2012
    scooper

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    That sounds reasonable to me...

    Now, TiVo would have to file an additional lawsuit against Echostar to bring these other 2 patents to bear, correct ?
     
  9. Aug 26, 2009 #949 of 2012
    dreadlk

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  10. Aug 26, 2009 #950 of 2012
    scooper

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  11. Aug 26, 2009 #951 of 2012
    Greg Bimson

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    jac, this is a bad argument:
    The assumption here is that DVR functionality is disabled...
    If DVR functionality is ceased, then they cannot possibly be infringing, and still can be used. That is 100 percent true. They'd still be "Infringing Products", and still within the scope of the injunction.

    The point is when the injunction became active, the infringer was ordered to do a few things. One of those things upon the commencement of the full force and effect of the injunction was to disable the DVR functionality in "Infringing Products" installed within customers homes. DISH/SATS did not follow that order from the court.

    It is that cut-and-dried. At least it has been, from my argument. And Judge Folsom agreed, by granting contempt.
     
  12. Aug 26, 2009 #952 of 2012
    jacmyoung

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    Just read TiVo's "red brief" and a few points:

    1) TiVo quoted the "disabling provision" of the injunction many times, but each time replaced the term "Infringing Products" with the term "adjudicated units".:)

    Remember what I said many times before? Had TiVo proposed and the judge adopted the term "Adjudicated Products" rather the "Infringing Products", the order might have some more teeth. Now TiVo seems to agree with me and keep using that new term. But of course that is a clear false presentation. The order did not use the "adjudicated units" rather the "Infringing Products". The fact TiVo felt compelled to replace that term each and every time it mentioned the disabling provision (and many times it did), is very telling.

    2) Only in one instance TiVo addressed the term "Infringing Products" separately. TiVo's argument is the word "Infringing" is not a limiting word. TiVo cited a criminal case in which the court said in the term "felony drug offense", the word "felony" was not the only limiting word. But of course TiVo ignores the fact the term "drug offense" alone also limits the term to describe a felony, because drug offense is a felony offense. Here the word "Products" cannot possibly stand alone to mean "infringing products". Therefore the word "Infringing" is absolutely a limiting word.

    Greg, the above answers your question of how to interpret "Infringing Products" because neither TiVo, nor Judge Folsom took your position.

    3) If we recall I mentioned E* asked TiVo to fill the blanks with software codes that could still prove all those steps were still performed by the new design? Well TiVo's response was they had a chart that answered that question, but refused to fill in the blanks. Basically telling the judges to find for themselves from that chart which codes to fill in those blanks in order to prove infringement for TiVo:)

    It reminds me of one person (not on this site) who often responded with other members' countering questions by saying, hey I answered them already, you just needed to go back to find them for yourselves, I am not going to waste my time to answer your questions:)

    4) Last but not the least, in its conclusion, TiVo demanded that the appeals court "immediately" vacate the appeals court's own stay order and reinstate the injunction. We will see how it goes.
     
  13. Aug 26, 2009 #953 of 2012
    scooper

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    Absolutely - TiVo (and Greg) were thinking the 2 terms were "identical" in meaning. Well, IF they were - Greg's position that "Infringing Products" would mean that indeed - all the Echostar units would have had to be disabled. The problem is , of course - they aren't. TiVo and Judge Folsom assumed that Echostar could NOT make them not infringing. The fact that it isn't clear should be enough to throw it out.


    I'd love to be the Appeals Judge hearing this, just so I could "bitch slap"* Tivo on what they're doing here (and while I was at it, Judge Folsom as well) -
    #1 - for the trial, insisting the Start Codes business was "the core of the invention", but for the contempt phase (when Echostar had removed same), the same "Start Codes" were irrelevant. (talk about changing the rules of the game in the middle !).
    #2 - that business in their Red Brief on swapping the terms "Infringing Products" and "Adjudicated Units".


    * = only figuratively, of course...
     
  14. Aug 26, 2009 #954 of 2012
    jacmyoung

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    What I meant was, TiVo and Judge Folsom took a different position compared to Greg's when it comes to interpreting the term "Infringing Products". They understood infringing products could be made into non-infringing products without the court declaring so. That was why TiVo intentionally tried not to mention this term when it quoted the disabling provision time after time.

    That was also why the only significant argument TiVo made with regard to the "Infringing Products" was that the word "Infringing" was not a limiting word. The problem is, when TiVo tried to support such contention, they cited that criminal case, in which the court actually refuted TiVo's contention.

    Because there, the word "felony" was not the only limiting word in the term "felony drug offense". The term "drug offense" standing alone limited the term as a felony offense. Here, the term "products" cannot possibly describe any infringement offense, therefore using the very case TiVo cited, we draw the opposite conclusion, the word "Infringing" must be a limiting word. In our case, the only way for the word "Infringing" not to be a limiting word is to not use it.

    Maybe TiVo should have proposed to use only the term "The Products" to be used in the injunction, but they did not.
     
  15. Aug 27, 2009 #955 of 2012
    phrelin

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    OK all you legal procedure experts. Is there any way AT&T and Verizon can involve themselves in either the appeal or the Patent Office review? See Tivo suing AT&T and Verizon. Because if there is, Charlie Ergen has two new best friends.
     
  16. Aug 27, 2009 #956 of 2012
    jacmyoung

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    I am no lawyer so below are only educated guesses:

    First, I don't think ATT/V* can "involve" themselves in this current appeal as joint appellants, because they are not parties in this lawsuit. But as outside parties, they can file "amicus briefs" in support of E*, just like what ATCI did in support of TiVo on the issue of whether to stay the injunction. I just don't see the point of them doing so. The ACTI amicus brief did not help TiVo a bit.

    Next, the current PTO reexamination is far enough into its process that any future activities will likely be only between TiVo and the PTO, any other parties may not be part of it, to some extent even E* may not be part of it, though E* is still required to update the PTO of any news on the current litigation or any other news relevant to the reexamination.

    But any third party or parties can request the PTO to reexamine any patent at any time, as long as they can demonstrate there are new questions that may invalidate the patent or some of the claims in the patent. If ATT/V* choose to do so and succeed in doing so, it will just be a separate reexamination.

    On the point of having some "new best friends", I don't think Charlie needs such friends, as long as E* is confident they can win on the appeal, IMO it is better that ATT/V* loses to TiVo or settle with TiVo so they are forced to pay a fee to TiVo, making them less competitive to E* due to the extra cost.

    That is not to say this will be good for the consumers. TiVo is driving up the cost by forcing a licensing fee on everyone.
     
  17. Aug 27, 2009 #957 of 2012
    Greg Bimson

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    It is obvious that some are simply trying to "interpret" what I've said. So let's try this:
    EchoStar’s “plain language” arguments are unavailing. First, EchoStar contends (Br. 60) that because the order requires disabling “Infringing Products,” it reaches only “products that [still] have the infringing functions.” But “Infringing Products” is a defined term in the injunction, referring to the eight product models adjudicated at trial. Its meaning is controlled by that definition, not limited by the word “Infringing.” See Burgess v. United States, 128 S. Ct. 1572, 1577 (2008) (defined term “felony drug offense” not limited by word “felony”). EchoStar cannot narrow the definition to suit its purposes, and the district court did not abuse its discretion by adhering to the order’s terms. See Amado v. Microsoft Corp., 517 F.3d 1353, 1358 (Fed. Cir. 2008) (“A district court’s interpretation of its order is entitled to deference unless…unreasonable or…otherwise an abuse of discretion.”).[/quote]TiVo's argument is that "Infringing Products" is a defined term in the injunction, specifically the eight models adjudged to infringe during trial.​

    Funny. That's been my argument. Since eight models were defined within the injunction as one definitive proper noun phrase, it only has one meaning, no matter what spin is given by DISH/SATS. That would be where TiVo states, "“Infringing Products” is a defined term in the injunction, referring to the eight product models adjudicated at trial." TiVo presents that "Infringing Products" does not mean products which infringe as DISH/SATS portrays, within the citation I've provided.

    And as I've said numerous times, DISH/SATS could change the software 9 million times if they wanted to. Heck, DISH/SATS may have even found a way to make "Infringing Products" no longer infringe. However, DISH/SATS was ordered to implement one change on the couple million units of eight adjudged DVR models within customers' homes as of 8 September 2006: disable DVR functionality. That order was not followed.
     
  18. Aug 27, 2009 #958 of 2012
    jacmyoung

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    Of course I forgot to mention the most infamous claim term, "parses audio and video data from the broadcast data."

    Despite TiVo's repeated argument that E*'s new design still met the "parse" limitation, in the end TiVo could not avoid addressing the "audio and video data" limit.

    E* argued that the PID filter did not parse any audio and video data, it only parsed the headers of the broadcast streams, which contained just some 13-bit numbers. This much TiVo did not dispute. Tivo only argued that so what? The broadcast data contained both the headers and the payloads, and since the payloads contained audio and video data, the PID filter must also have analyzed the audio and video data. This logic should fail on its face right there.

    But to further demonstrate that the PID filter did not parse the payloads, E* pointed out the fact that at the stage of the PID operations, the payloads were scrambled, any data contained in the payloads simply could not be analyzed at that time, only the headers might be analyzed because the headers are never scrambled.

    TiVo's response was, but the "claims are not limited to parsing unscrambled data." TiVo then added in the footnote that E* admitted there were unscrambled channels. Here is TiVo's admission that E* has a point with regard to any scrambled channels, so they say hey you have unscrambled channels too, gotcha!

    But TiVo forgets, by admitting that it is true the PID filter cannot parse any audio and video data when the channels' payloads are scrambled, TiVo in all practicality has admitted the PID filter's function is not to parse any audio and video data. Because otherwise all the scrambled channels would have to be unscrambled before they are fed to the PID filter, but this is clearly not the case.

    TiVo seems to imply that while the PID filter cannot parse any audio and video data if it sees a scrambled channel, somehow it will begin to parse the audio and video data in an unscrambled channel if it notices that that channel's payload is unscrambled. But of course this is also not true, so TiVo decided to stop short of claiming that. As such, it is clear to me TiVo has failed to prove by clear and convincing evidence that the PID filter parses audio and video data. Yes it still analyzes, just that it only analyzes a bunch of 13-bit numbers in the headers in order to tell the decoder which number of channel to tune to. If that function can be called an invention, well I have a bridge to sell them.
     
  19. Aug 27, 2009 #959 of 2012
    jacmyoung

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    As I further researched that case, I found a correct interpretation of it:

    Now we have the correct interpretation, let's find out what TiVo did not tell us. In that case the court was saying, the term "felony drug offense" by default was an "offense". As long as it was "an offense punishable by more than one year," the word "felony" had no limiting effect as far as whether the defendant could be punished for more than one year or not.

    So in the correct context, we look at the current case, the term "Infringing Products" by default defines the "products". As I said, the word "products" cannot carry any consequences, unlike the word "offense" above. Therefore the word "Infringing" had to be used to limit this term to only define the products that had infringed, in order for the order to have real teeth, if one uses the same rationale as in that criminal case.

    The mere fact the court was even arguing the term "felony drug offense" in order to justify the punishment, is a testimony in E*'s favor that here, when it comes to any punishment, the court equally cannot ignore the term "Infringing Products" when it decides whether the contempt punishment is justified or not.

    And yet this is precisely what TiVo is doing, asking the court to ignore the term "Infringing Products" when the court tries to determine whether the punishment is appropriate, so much so that they purposefully omitted this "Infringing Products" term, replaced it with the "adjudicated units" each and every time they quoted the so called "disablement provision".
     
  20. Aug 27, 2009 #960 of 2012
    Greg Bimson

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    That function is not the invention, but a step within the invention, as detailed by the patent and its claims. Five of five experts agreed that limitation was met during the trial.
     
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