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TiVo vs Echostar ... June 30th-July 18th Filings

Discussion in 'General DISH™ Discussion' started by James Long, Jun 30, 2008.

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  1. Greg Bimson

    Greg Bimson Hall Of Fame

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    Since when can an adjudicated product be a modified product? I only see one person playing a word game.

    Everyone has pretty much agreed a product enjoined and restrained from sales and manufacture can be modified and sold. If the patentee feels that the UNADJUDICATED product being sold is simply a merely colorably different construction of the adjudicated products, the patentee will file a motion for contempt.

    The entire problem with your line of thinking:
    That is a prima facie violation.

    There is an admission that Safety 1st sold the same infringing product that was enjoined. So let's translate these sentences into the TiVo case, as the most likely outcome from Judge Folsom's ruling:

    With respect to disabling "Infringing Products", Echostar has admitted that no units of the "Infringing Products" have been disabled. Echostar attempts to minimize its contemptuous conduct by playing word games with the Injunction. The fact remains, however, that Echostar violated a valid court order. Thus, the court finds that Echostar is in contempt of the Injunction with respect to complying with the disable order.

    Or, I could simply use the recall order from the Fisher-Price case:
    Translation to the most likely outcome of the TiVo case:

    TiVo argues that Echostar violated the Injunction by making no attempt to comply with the disable order regarding products found to infringe before this court. The court agrees. Considering the inconsistent attempts arguing against the plain language of the injunction, Echostar has admitted during depositions and at trial that no product found to infringe has been disabled. Therefore, the court finds that Echostar is in contempt of the Injunction with respect to its efforts to disable products found to infringe.

    The problem is that the product ordered disabled has been adjudicated. There is no need for any other finding in order to rule contempt. And most certainly, colorable difference does not apply.
     
  2. harsh

    harsh Beware the Attack Basset

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    This is a legal case, not a popularity contest. The question of infringement should be an easy one to answer regardless if your a E* beneficiary, a TiVo beneficiary (I don't think there are many of these) or aligned with one of DISH Network's partners or its direct and indirect competitors. If the question doesn't have an obvious answer, the case should be tossed out and the patent reviewed by intellectual property specialists, not citizens way out yonder in East Jesus, TX.
    Yet TiVo chose to hold court as far away as possible from the technology centers and well-known for voting for the little guy. Is that how justice is best served or as close as you can come to buying a decision?

    What makes this case so difficult to decide? Is it that the patent is ambiguous? Was the testimony misleading or obfuscatory? Where the instructions impossible?
     
  3. James Long

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

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    Sorry jacmyoung, I'm talking about THIS case and THIS order. Once again you are missing the point and now you're spinning into topics that I wasn't responding to. Your response and attacks are irrelevant.

    My reply was relating to THIS SEPTEMBER 4TH's MEETING where DISH will face the judge on a charge of "running a stop sign" by not disabling the DVR functionality on the named products. The issue of modifications is clearly (and by order of Judge Folsom) an issue for another day.

    Will that prevent the court from finding the infringer in contempt? Show us the case.

    Have you done that yet? Have you shown us a case where the district court relies on the precidents you say were set by other cases to ACTUALLY come up with a denial for a motion for contempt? Or has the district court consistently ruled contempt in these cases? Simple question ... it deserves a simple answer. Under 10 words will do. I expect you'll post another 400 word tirade on the subject just to further obfuscate the thread ... but if YOU want to convince ME post a simple case reference. Any more than that will be taken as a further attempt to hide the truth in a multiplicity of verbage designed to obfuscate. Show us the case.
     
  4. James Long

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

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    Yes, it is a legal case. And you are fully aware that our legal system allows for plaintiffs to file against defendants wherever they do business. Should or shouldn't be able to really isn't the issue ... it is the system we have.

    Under that system DISH has been found guilty. Introducing anarchy will not make DISH innocent. We've got to accept the court system as is and move on with the case in the system we have. (Or get congress to change the system ... which is beyond the scope of this thread.)
     
  5. jclewter79

    jclewter79 Hall Of Fame

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    I don't think it is a must that you have an engineering degree to hear this case. Any person that can read, with a normal intellegence level should be able to be told how dish infringed and then make a ruling as to whether they did or not.
     
  6. Greg Bimson

    Greg Bimson Hall Of Fame

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    Four questions from harsh, four answers from me.
    It has been decided. It only took a jury a couple of hours to render the verdict. So obviously there wasn't difficulty.
    First, the patent could not have been too ambiguous, as DISH/SATS challenged it at the PTO, and the patent was upheld.

    Of course, the validity was also challenged in court, and the guilty infringement verdict certainly proved the validity, with respect to both the claims and their constructions.
    Most likely what is being appealed at SCOTUS.

    However, realize that one of DISH/SATS experts had their testimony stricken from the record for being misleading or obfuscatory. If you really want to win your defense case, use some propriety in making sure your defense is bulletproof.
    Couldn't have been too impossible, as the verdict was rendered rather quickly.
    And you won't find one. Just like James mentions, you've taken every case law you've found and pieced it together so it looks wonderful. However, in context of the other cases, such as KSM, the patentee never accused products already adjudicated as infringement. The modified products were treated differently than products already adjudicated as infringing.

    So some people, based on incorrect assertions, are asking for DISH/SATS to receive preferential treatment by setting precedent and finding no contempt. A denial of the contempt motion will gum up the judicial system to no end, as there will never be finality to litigation, as the infringer can simply say, "We've modified the product again, so please stay the contempt proceedings since none of the adjudicated products exist anymore."
     
  7. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Would that be because DISH stole TIVO's IP? :)
     
  8. Curtis52

    Curtis52 Hall Of Fame

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    The manufacturer of Star-Brite was accused of a prima facie injunction violation by continuing to sell Star-Brite, a named, enjoined, adjudicated product. The company was not found in contempt because they had modified the product to be more than colorably different.
    That's the way it's supposed to work. The modified products should be examined to see if they are more than colorably different as happened in the Star-Brite case.
     
  9. Greg Bimson

    Greg Bimson Hall Of Fame

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    Correct. And the defense against an accusation of prima facie sales of an enjoined product is that it has been modified so it does not infringe.

    So obviously, when talking about the injunction against infringements, the status of the product has to be checked. That is consistently correct with the arguments that both you and jacmyoung have found. Almost everyone here would agree that is the case.

    That would also be the case if TiVo accuses DISH/SATS of selling a 625. If it has been modified, it has not been before the court.

    However, every old 625, prior to modification and prior to the issuance of the injunction order, has been before the court and found infringing. A modification of that product does not change the fact it was adjudicated as infringing. Products which have been adjudged infringing do not simply disappear from customers' homes with a simple change in code. The status of infringement is attached to the device by the court, and that status is certainly not removed by a simple change in code. The court is the only one that can remove the status of infringement.
     
  10. Curtis52

    Curtis52 Hall Of Fame

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    Just as in Star-Brite, a modified adjudicated product that is more than colorably different from the adjudicated product is legally a different product. It doesn't matter where the product sits.
     
  11. scooper

    scooper Hall Of Fame

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    No - it's because Tivo appears to have difficulty in getting others to license it.
     
  12. scooper

    scooper Hall Of Fame

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    And it's not going to be decided on September 4th.
     
  13. jacmyoung

    jacmyoung Hall Of Fame

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    Greg's entire argument now is hinged on, as Tivo insists, that an adjudicated product already sold, or already with the end users, may not be modified, because most prior cases "pieced together" (which is exactly all rulings are based on, pieced together case law) did not address products already sold or already in the field. Greg's notion is he does not have to piece together anything, just because Tivo is only accusing products already in the field (and may not be modified).

    But he continues to avoid the fact we do have casses in which adjudicated service such as Footprint 2.0 already in the field was modified to avoid contempt, to which Greg insists again it was because the court "allowed" such modification.

    So the question is not whether it can be done rather if it needed court pre-approval. But I think we have proven modification needs no pre-approval.

    Again let's keep our eyes on the ball there, the only question remaining for Greg and his companies is whether the infringer needs court pre-approval to modify an adjudicated infringing device already in the field to workaround the patent.

    Many other arguments from them have been refuted such as:

    1) There is a second "mandatory order";
    2) The modification is not on the agenda on 9/4;
    3) The only case where pre-approval was required was when the infringer "modified" a total of four times, each time the effort was only colorable.

    So what if Tivo is not accusing DVRs not already sold? They will not even be able to successfully accuse the DVRs already sold because nowhere did the court ever said the products already sold may not be modified to workaround the patent, and we have cases where services/products already in the field were modified just fine, and we have also clearly demonstrated courts did not insist pre-approval at all.

    Yes all of the above were "pieced together" of course, the only way the court rulings are constructed and based on.

    Greg does not need to piece together anything, because he has his own belief system to ensure Tivo will prevail. How are you going to be able to argue with someone's belief?
     
  14. jacmyoung

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    But what if it gets decided on 9/4, will you be so disappointed of our patent system as to move out of the country:)(US patent laws cannot reach foreign soils)?
     
  15. scooper

    scooper Hall Of Fame

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    You just now noticed that in my sig ? :D

    Actually, I'll either celebrate or be pissed, depending on the decision's results.
     
  16. Curtis52

    Curtis52 Hall Of Fame

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    TiVo thinks it's possible:
     
  17. scooper

    scooper Hall Of Fame

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    Not without discovery, and Tivo should get that on Sept 4. Or rather - it would not surprise me if they get discovery then.
     
  18. Greg Bimson

    Greg Bimson Hall Of Fame

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    Really? Then why is it that every single case law brought up regarding "colorable difference" starts with an accusation of sales of infringing products?
    You've proven nothing.
    No, none of these have been refuted.

    1) There are two orders with which DISH/SATS must comply. Only one of them tests colorable difference, and that is for sales of products never adjudicated.
    2) Modification is not on the agenda 4 September.
    3) And all four of those times were for violating the injunction by selling modified but still infringing products.
    And summarily refuted by TiVo. Have you read any of TiVo's briefs without DISH/SATS colored glasses? You want a pieced-together argument? This is why KSM and the others quoted do not apply:
    Every argument regarding modification does not apply to the products originally found infringing.

    None of DISH/SATS supposed citations of case law revolve around installed, adjudicated infringing products. So unless you believe precedent will be set with this case, the motion for contempt will be granted.
     
  19. nobody99

    nobody99 Icon

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    link

    Seems apropos.

    Dish is using the first definition, and Curtis/jacmyoung are using the second :lol:
     
  20. Greg Bimson

    Greg Bimson Hall Of Fame

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    Oh, it is possible that could be ruled upon. Just not likely.
     
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