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Discussion in 'General DISH™ Discussion' started by James Long, Jun 30, 2008.
The four million products in question HAVE been enjoined as infringements after trial on a complaint. The above would apply to new products that are not only colorably different in an infringement complaint ... it doesn't apply to existing products.
Tivo does not doubt that DISH's conduct is wrong ... which is why they resorted to a contempt motion.
The court has not been asked to reopen the previously adjudicated issues. Not even by DISH (who are claiming 'new products' and 'virtual product replacement' not 'please re-adjudicate our existing products ruled infringing').
There is no motion before the court asking modified products be ruled infringing. There is a motion before the court to find DISH/SATS non-compliant with the order to disable the existing devices found to infringe.
Direct from the case you know and love so well.
But he knows so many so well (not sure any of them are loved). Care to name the case?
Greg, let’s keep our eyes on the ball here.
First off, you and I apparently disagree if the products already sold may be modified to be outside of the scope of the injunction, you say no, I say yes because the standards never excluded products already sold from those rules.
Your response is then, but there is the second order in this injunction to disable, well yeah, in your case law there was also a second order to pull of the shelf.
You said in your case the patentee only accused the infringer of contempt of the continued sale and not pulling of the shelves those non-modified products.
Absolutely not true, the patentee in your case did precisely what Tivo is doing, accused the infringer of violation of the letter of the injunction, on both the first order and the second order, for all products the infringer sold and not pulled off the shelves after the injunction took effect.
Those modified products in your case were already on the shelves even before the injunction took effect. The infringer only notified the stores after the injunction took effect by mailing the stores some kind of product instruction sheets, in which they described a new hardness part, and a new model # assigned for those products with the new hardness part.
So it was clear the infringer violated the letter of the injunction even with the modified products because all the products in question in that case, whether modified or not, were already in the stores, before the injunction took effect, and all the products in question, also all bore the same name and model # as specifically proscribed in the letter of the injunction.
And that is the bottom line. It did not even have to do with if the products were sold or not, in that case it had to do with if the products were already on the shelves or not, and according to the patentee, and based on the letter of the injunction, all products already on the shelves bearing the names proscribed had to be pulled.
But the court said, no, not for the modified ones, because once a product was modified, the requisite standard must be used. Sounds familiar? And since the patentee did not meet such standard, and failed to prove with clear and convincing evidence that the modified products still infringed, the infringer was not in contempt of the continued sale of those products after the injunction took effect, and also not in contempt of not pulling them off the shelves even though those products were placed on the shelves before the injunction was in effect, and also those products were specifically named in the injunction as to be pulled off the shelves.
Violation of the letter of the injunction in that case was abundantly clear, but since the patentee did not prove with clear and convincing evidence that those modified products were still infringing, the court said it could not find the infringer in contempt of selling those modified products or not pulling them off the shelves.
Again keep our eyes on the ball here, at this point we are not arguing whether the products are sold or not, but if those products were already on the shelves or not, and if prima facie violation is enough because the injunction ordered all the products already on the shelves be pulled.
Your case clearly proved , when it comes to modified products, prima facie violation is not enough, infringement must also be found.
This is exactly what is in front of the court on 9/4. On one hand Tivo insists prima facie violation is enough to cite DISH in contempt, on the other hand DISH says wait a minute, for the modified products, prima facie violation is not enough, Tivo must prove with clear and convincing evidence that the accused modified DVRs still infringe.
Then why bring it up? The motion before the court isn't about fasteners either. The KSM appeal was made precedential and the court detailed the logic in their ruling so that other courts could apply the same logic in other cases (even if the cases aren't about fasteners during a waning moon).
Because that is the only thing going for Tivo. Sadly the above statement does not say used products do not apply, only that in that case the product was new.
But we have more than one case in which used products/services/processes were subject to the same rules, those rules use the terms such as "adjudicated products" or "infringing devices", and without exception stated that they can be modified to workaround the patent in order to stay in the marketplace.
The Tivo people choose to ignore those rules, but the court cannot.
Sorry - it's KSM.
You just don't see the train wreck coming for DISH, do you.
Curtis, every time you quote KSM, just keep this in mind. The court said this in KSM:
Again there are other cases where the products involved were already in use, the same rules apply.
Curtis did not only cite the KSM, in fact he made fun of Greg continued to bring up the KSM case. I remember Curtis' most recent quotes were all from other cases, where the term used was either modifying "adjudicated products" or modifying "infringing devices", no where indicating they had to be not sold yet.
And keep in mind if you ask a "smart" question, you also run the risk of making yourself look very bad if that question turns out not so smart in the end.
Care to prove this?
Uh, Curtis is the one continually bringing up the KSM case. I use the KSM case to diffuse his (and your) incorrect theory.
KSM is about accusing a modified device which has never been before the court of continued infringement. Fisher-Price is about contempt regarding products that have been before the court before, as any infringing product which had been modified and sold were correctly removed from contempt relief. TiVo is only asking that adjudicated infringing product follow the order which was given: disable DVR functionality.
Then I find it incredibly curious as to why every single standard in defense of DISH/SATS points to devices that have never been before the court before, espeically when TiVo is simply asking that the devices before the court and adjudicated infringing should simply follow the injunction.
Not a single standard applies to a product adjudged infrining.
Even DISH/SATS says they've complied with the injunction.
KSM is about contempt of court for not complying with a patent injunction with regard to a modified adjudicated product. The appeals court laid out all the logical decision steps to be applied in such a case. They knew the case was precedential and would be used in a variety of patent cases. If they felt like a step in the logic needed caveats such as "if the modification is of a blue part then..." or "if the modification is performed north of the equator then ..." they would have said so. There are no caveats that remove the 9-4 contempt hearing from the case law they laid down.
Because the order to disable applies to the devices already found infringing. Although those devices' infringement status now is questionable, the fact those devices have been ruled infringing and will never get another ruling otherwise is the rule of law.
The only caveat being if SCOTUS agrees to hear the writ of certiorari filed by DISH/SATS. The appeals process still has a way to go on the original verdict.
And Jones (the defendant, or infringer) agreed that the adjudicated product, the THERMA-LOCK, was still enjoined and subject to the injunction.
And once again, TiVo cannot file suit against a product already found infringing. Said devices are already enjoined as infringements under an existing injunction under this complaint.
You are asking for TiVo to file another suit against a device already adjudicated to infringe.
Devices adjudicated to infringe do not get any more consideration.
Gee, that sounds a lot like reopening issues previously adjudicated.
Let's put Curtis52's quotes in context, shall we?
The plaintiff said that the modified device was subject to the injunction.
Why would TiVo need to file suit? They would only need to do that if the devices are more than colorably different. At that point res judica doesn't apply. That's the reason for the colorably different test, to determine whether there needs to be a new suit.
I am not asking TiVo to do anything. To follow case law with regard to modified devices they need to first find out whether the devices are not more than colorably different. If they aren't, then Dish is in contempt. If they are more than colorably different then they aren't the same device for the purpose of res judica and TiVo would need to file suit.