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Tivo vs EchoStar ... September 4th Hearing (w/transcript)

Discussion in 'General DISH™ Discussion' started by James Long, Sep 4, 2008.

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  1. Sep 16, 2008 #801 of 1182
    jacmyoung

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    No you did not understand, TiVo filed complaint that the DISH hardware infringed on the basis of literal infringement, but they did not file complaint that the DISH hardware infringed on the basis of the equivalents. When TiVo did that, the judge was correct to instruct the jury when they decided on the hardware infringement issue, they had to use only the standards on literal infringement, but not to decide on the basis of the equivalents, because TiVo did not file its complaint on such basis.

    TiVo did file complaints that the DISH software infringed, on both the literal and the equivalents basis.
     
  2. Sep 16, 2008 #802 of 1182
    jacmyoung

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    Why don't you cite where the judge instructed the jury not to rule on equivalents, if they ruled on literal?
     
  3. Sep 16, 2008 #803 of 1182
    Greg Bimson

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    I'M done. Again. I am arguing with someone that believes the patentee must file an infringement suit and request a ruling by the doctrine of equivalents, when it is something the judge instructs.
     
  4. Sep 16, 2008 #804 of 1182
    Curtis52

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    "A claim limitation may be present in an accused product in one of two ways, either literally or under what is known as the doctrine of equivalents."
     
  5. Sep 16, 2008 #805 of 1182
    Ergan's Toupe

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    :bang :beatdeadhorse:

    What took you so long?
     
  6. Sep 16, 2008 #806 of 1182
    nobody99

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    Uh, what?

    dfd was quoting directly from the CAFC's appeal decision.
     
  7. Sep 16, 2008 #807 of 1182
    James Long

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

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    Dear sir ... you are mixing things up again. Judge Ward was NOT the Dr. King case as you falsely assumed! From the transcript: "AND THAT IS WHY WE CITED TO YOUR HONOR JUDGE WARD’S ORDER IN THE MATHWORKS CASE".

    Get it right, please.
    You have a full transcript in front of you and you STILL post this lie? Unbelievable.
     
  8. Sep 16, 2008 #808 of 1182
    jacmyoung

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    It is nice to be able to offer you at least one argument on which it appears that you have won, even though it has no weight on the outcome of the ruling.
     
  9. Sep 16, 2008 #809 of 1182
    jacmyoung

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    What the difference does it make, as long as the design around was not "an issue" the judge was asking about? The judge was asking if TiVo would concede the case law they just cited would not be an issue? Not the design around, because TiVo had always said the design around was not an issue, there was nothing for TiVo to concede on that.

    Whether it was the Judge Ward case, or that Dr. King's case, both had to be first based on the premise that DISH had violated on the face of the order. The judge was asking what if he found DISH not in violation on the face of the order? In such scenario, neither of the above two cases applied.

    Did TiVo manage to cite any other cases under such judge's scenario? NONE! They never prepared for it.

    I recall you argued that my speculation was so wild, that later at 10:27 when Mr. Baxter addressed the court he was citing the Dr. King's case, and that would have proven me wrong.

    Did it turn out your speculation about the content of Mr. Baxter's addressing the court correct? Did I accuse you of lying?
     
  10. Sep 16, 2008 #810 of 1182
    nobody99

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    Every time I read the transcript of the case, I can't help but think that DISH is trying to pull a fast one on Judge Folsom. I can't help but believe they are trying to make it seem like the workaround only applies to new products..they are specifically avoiding the idea that actual products are already adjudicated. If you read his comments with the assumption that he's dealing with newly-manufactured products, his questions, demeanor, and reasoning all fit right in line with the idea that DISH is within their right to change the design and create a newly-manufactured product from it.

    I don't think TiVo's legal team did a very good job laying that out at the hearing (though the certainly did in the briefs).
     
  11. Sep 16, 2008 #811 of 1182
    James Long

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

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    That was where your lie began. Claiming that Mr Baxter was discussing the King case at all when the minute entry said "Mr. Baxter has background re: case before Judge Ward;". It was your lie that the Ward case was the King case. Uncaught at the time, but you were wrong.
    As correct as it could be considering your false information. Actually very correct when one is looking at the correct cases and not injecting the false reference to Dr King that you made.

    Some day you'll admit an error, jacmyoung. Until then there is no reason to believe anything you say and you are obviously willing to say anything - true or not - to support your viewpoint. (And usually cloak it in a hundred words.)

    The transcript remains available for those who want the truth.
     
  12. Sep 16, 2008 #812 of 1182
    jacmyoung

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    They couldn't because during the hearing, the judge was there to question each side's logic. And under such scrutiny, you better be prepared, it is no longer a free ride. That is of course true for both DISH and TiVo, the judge scrutinized both of them.

    In briefings, each can say whatever they like, there is no one to refute them.
     
  13. Sep 16, 2008 #813 of 1182
    jacmyoung

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    What about the "design around"? Why are you not addressing that one?

    Was it logical for the judge to ask TiVo if they would concede the design around was not an issue, when TiVo had always said the design around was not an issue?

    Or is it more logical to say the "issue" the judge was asking was about the case TiVo just cited? Regardless which one of the two?
     
  14. Sep 16, 2008 #814 of 1182
    James Long

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

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    THE COURT:
    I WOULD LIKE TO ASK YOU, DO YOU AGREE THAT ASSUMING I FEEL I CANNOT FIND ECHOSTAR IN CONTEMPT WITHOUT AN INFRINGEMENT ANALYSIS ON THE DESIGN AROUND, DO YOU CONCEDE THAT THAT’S NOT AN ISSUE, THAT IT SHOULD BE A DIRECT ACTION, OR IS THAT STILL A SUBJECT FOR THE COURT TO DETERMINE IF I CAN GO FORWARD ON A CONTEMPT ACTION TRYING TO DETERMINE IF THERE IS AN INFRINGEMENT, AND IF THERE IS THE APPROPRIATE DISTINCTION THAT WOULD ALLOW ME TO DO SO UNDER THE CASE LAW? ARE YOU ESSENTIALLY CONCEDING, AS MR. MCELHINNY SAYS, THAT WITH THE OPINION OF COUNSEL THAT HAS BEEN PROVIDED THAT PERHAPS THIS IS NOT AN ISSUE?

    MR. CHU:
    WE DISAGREE WITH THE POSITION TAKEN BY ECHOSTAR. THERE ARE TWO SEPARATE ISSUES, ALTHOUGH THEY BOTH HAVE THE WORD CONTEMPT IN THEM. THE FIRST QUESTION IS, WAS THE INJUNCTION ON ITS FACE VIOLATED?
    Zero concession. Perhaps Judge Folsom just wanted to clear up previous statements. Why don't you ask him? :rolleyes:

    It appears that Judge Folsom was just playing devil's advocate (and DISH is the devil?) and working through a possible compromise position. If Judge Folsom decides to look at infringement before contempt what would Tivo think? Simple question. Simply answered.
     
  15. Sep 16, 2008 #815 of 1182
    James Long

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    FYI: The announcement of the availability of a transcript was added to PACER today with a PACER release date of December 15th. Nothing else new in TX or DE.
     
  16. Sep 17, 2008 #816 of 1182
    jacmyoung

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    Of course TiVo refused to concede, why should they? Didn't that just show exactly what the judge was asking? Had the judge asked if they would agree with the judge's "devil's advocacy" that the design around was not an issue, wouldn't TiVo immediately concede? They had been arguing the design around was not an issue all those time.

    The judge was asking, if I did not find DISH in violation on the face, would you then concede your case law was not an issue anymore?

    The judge scrutinized both lawyers, with the DISH lawyer:

    1) Why didn't you inform me the design around and let me decide how to arrange it? In the end he said I did not necessarily disagree with you, just to make a point.

    2) Why didn't you tell me about the DE plan on 5/30? You knew you would do it in 30 to 45 minutes, you wanted fairness? But in the end he also conceded DISH was not obligated to "alert" him, that it would be up to the DE court not him to decide on the new software case.

    3) Do you think I could still find DISH in contempt even with the design around? Luckily the DISH lawyer said yes. Of course, depending on the "extent of the design around" the judge said. If the extent of the design around is only colorable, DISH is still in contempt. Only if the design around is more than colorable, DISH will not be in contempt.

    4) He asked the DISH lawyer to concede the $16 million was a minimum, of course it was a minimum.

    On the TiVo lawyer:

    1) He had a lot of trouble understanding why Mr. Chu tried to dismiss the KSM case, you could tell the logic of the judge and of Mr. Chu did not meet in the end. The judge simply dropped that issue after Mr. Chu insisted the KSM was not applicable.

    2) He asked what if he found DISH not in violation on the face, would you concede your case law was no longer an issue, Mr. Chu refused to concede, and the judge said the closest case was one of yours that proved if the infringer disagreed with the wording of the order he should have asked the court to modify it. Not applicable here since DISH did not disagree with the wording of the order.

    3) He also had a lot of problem with how TiVo argued even if the design around got DISH a no contempt, the damages should still be added up to 4/08, because according to TiVo, had the order not been stayed, DISH would not have the chance to do a design around, and then the damages would have applied. While the judge did not go further, anyone can see the lack of merit in such argument, because DISH did get a stay, and did have that oppotunity to design around.
     
  17. Sep 17, 2008 #817 of 1182
    Ergan's Toupe

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    Just stopped in to say good job on killing this thread, Jacy.

    You took an excellent source of fact, opinion and information and flushed it down the toilet by constantly whining, twisting the facts, stretching the truth and outright lying. :mad:

    Thanks for nothing. I hope you have fun arguing with yourself. :nono2:
     
  18. Sep 17, 2008 #818 of 1182
    jacmyoung

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    Just want to add one more item that was burried in all the exchanges, DISH's lawyer actually refuted TiVo's citing of the Judge Ward case in which the infringer argued about why it was wrong to prohibit a non-infringing part to be used to further induce an infringement.

    The DISH lawyer's argument against the above case law was, for that case to apply, the order must have prohibited a non-infringing product or part to begin with.

    In this current injunction, it never tries to prohibit a non-infringing product or part. It only specifically prohibits the "Infringing Products", so the above Judge Ward's case simply will not apply here.

    In that TiVo's case, the infringer disagreed with the order to prohibit the use of the non-infringing spare parts, but the court said if they disagreed they should have asked the court to modify the order, rather took the order in their own hands.

    In this case, since the order does not in any way prohibt any non-infringing products or parts, there is no such disagreement from DISH, and therefore the issue of asking the court to modify the order is moot.

    At least that was DISH lawyer's argument against TiVo's citing of the Judge Ward's case.

    My point was, the DISH lawyer did not even have to go to that length to refute the use of that Judge Ward case. DISH never disagreed with the letter of the order, unlike the infringer in that case, so it was a wrong case to cite in the first place.

    Why Judge Folsom jokingly told TiVo's lawyer, this was the closest case you had?
     
  19. Sep 17, 2008 #819 of 1182
    Greg Bimson

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    I'm now back with a cooler head...
    Because DISH/SATS just said TiVo did not dispute the design-around evidence, bolded by me from the transcript:
    In other words:

    We submitted design-around technical documentation, from both outside counsel and VP of Echostar Minnick. Because TiVo did not dispute our evidence nor submit any declarations, Judge Folsom can evaluate whether or not there should be a contempt proceeding on the merits of our design-around.

    However, in TiVo's response brief to DISH/SATS oppostion for contempt, TiVo did not dispute the evidence given by the outside counsel. They used it to prove that the "automatic flow control" was still present. And DISH/SATS own arguments that there is no filtering cannot hold water as the PID filtering was found as meeting the limitation of the claim for "parsing".
     
  20. Sep 17, 2008 #820 of 1182
    jacmyoung

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    So what? The above TiVo's response indicated they accepted the design around evidence, only that based on the evidence they reached a conclusion that was different than that of DISH.

    DISH said based on the evidence, the design around was more than colorable.

    TiVo said based on the same evidence, the design around was only colorable.

    Besides this above exchange had nothing to do with that Judge Folsom's particular question, that question immediately followed TiVo lawyer's mentioning of the Judge Ward's case. The exchange between the judge and Mr. Chu at that point was not about the design around, rather the Judge Ward's case.

    So when he asked Mr. Chu, if I found no violation on the face with a direct action, would you concede the Judge Ward case (the one you just cited) would not be an issue?

    Another reason to prove the judge was not asking if the design around was not an issue, is that if the judge finds DISH not in violation on the face of his order, the judge must have done so after he looks at the design around, and finds the "extent of the design around", as he put it, is more than colorable, as he lectured the DISH lawyer.

    So no matter which way you look at it, the judge could not have asked if the design around was not an issue, if he considers design around not an issue, he could not possibly find DISH not in violation on the face of his order.

    The only way the judge can find DISH not in violation on the face or his order, is to consider the design around, and to find that the "extent of the design around" is more than colorable. Otherwise DISH will be in violation of his order.

    If you consider the context above, then when Judge Folsom asked, if I found DISH not in violation on the face of my order, would you then concede it would not be an issue, the "issue" the judge asked Mr. Chu about, was not about the design around, because to find DISH not in violation on the face, the design around had to be an issue, there was no way around it.

    If the judge believes the design around is not an issue, he cannot possibly find DISH not in violation to begin with.
     
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