...uhh, before we start even getting into that, I don't want any of this to go off topic...
DISH/SATS provided code, and code only, to TiVo. DISH/SATS would not provide the test engine upon which the code was implemented. Therefore, let's not even talk about what sections are secretive...
Please show us where is TiVo currently saying that E* refused to provide the test product. If this is the case, yes it is a big deal.
I also want to point out that let's not try to dig up things on or prior to the 9/4/08 hearing, rather what parties are saying now
. Not only because the moderators had reminded us not to do so, but also anything on or before 9/4/08 are past sentences.
This is a new hearing, and in this new hearing, two new
issues will be addressed, and only the two new issues. You cannot bring back some old third issue, if you do, E* can easily appeal and have that issue thrown out, because if you want the third issue continue be a part of the next hearing, it has to be first proposed, then allowed by the judge, and then the other party given the chance to object to it, or argue against it.
TiVo of course can still bring up that third issue (separation of the DVRs pre and post the injunction), and the judge can even buy into it and rule on that, but since E* will have no chance to argue against it and defend themselves on that issue, it will be tossed out on appeal becasue E*'s due process right will have been violated.
Now to answer the question then why the Rogers' comments are relevant here? After all they were made some time ago. Well they should not matter. The only reason I brought this issue up was because some of you brought them up by discussing the new joint stipulation, and trying to make a big deal out of it.
I was only responding to the issues brought up by you folks. If you think it should be dropped, I am more than happy to comply.
In front of us are two things to be addressed in the next hearing, first whether the new software is only colorably different than the old software. And based on the reading of all the case law, if the answer is more than colorable, there cannot be a contempt, the proceeding should end. E* is arguing that since the two very pieces of evidence (the index table and the multiple buffers for auto flow control), you know the two things TiVo said were the "core of the invention"
that proved the old DVRs infringed, they are now removed, gone, evidence no more. Therefore the differences are certainly more than colorable.
Keep in mind the above colorable difference arugment has nothing to do with the patent claim limitations at all, the specific terms such as "parse", "temporary store", "extract"... are not discussed here.
The second issue is whether the 8 named DVRs still infringe on the Claims 31 and 61, literally or by equivalents. In the second issue the claims limitations will be addressed. And of course I will not repeat them.
Edited by jacmyoung, 08 February 2009 - 09:44 AM.