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TiVo vs. Echostar: Judge grants TiVo motion to disallow patent invalidity defense


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69 replies to this topic

#61 OFFLINE   Greg Bimson

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Posted 07 February 2009 - 08:20 PM

Now TiVo said we would not answer those 16 questions in part because we are protected under the court Protective Order to not disclose any trade secret.

Really? What can be so secretive in their engineers' communication to Rogers that the new software was impossible or did not make it?

...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...

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#62 OFFLINE   nobody99

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Posted 07 February 2009 - 10:59 PM

jacmyoung, I am wondering why you are so focused on Tom Rogers comments to Bear Stearns about it being "highly, highly unlikely" that DISH has a valid workaround.

What difference does it make? What he says to an investor group, or to his drinking buddies, or to his softball team really doesn't seem to matter as far as the trial goes. If he said "I hate Charlie Ergen, he's a jackass" would that matter to this case? Why do you dwell on this, with multiple posts about a comment someone made?

I'm surprised you're not more focused on the actual issues in front of the court.

#63 OFFLINE   jacmyoung

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Posted 08 February 2009 - 09:16 AM

...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.


#64 OFFLINE   nobody99

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Posted 08 February 2009 - 10:19 AM

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.


Perhaps it is time once again for James & Jason to close the thread as we are, once again, back to the same tired old stubborness.

You state, as fact, that "there cannot be contempt" if there is more than a colorable difference based on your interpretation of case law. I will wholeheartedly agree with you that contempt won't be found for sales of new DVRS if the difference is more than colorable. However, KSM offers absolutely no precedence for the actual devices that are already adjudicated to infringe. The Jedi Mindtrick of new software = new receiver doesn't work for some of us.

TiVo's lawyers intepret things differently than you. And since they are are actual lawyers, as opposed to people playing a lawyer on message boards, I tend to give their opinions a bit more credence.

So, it’s a typical circumstance, your honor, where there is an injunction and says thou shall not sell Product A, or similar products, or infringing products. Now, Product B comes along and then the question is, what’s the procedure and is contempt appropriate? That’s what ksm addresses. It does not address the situation where we have an adjudication, a jury verdict, post trial motions, affirmed on appeal of exactly the products that they failed to disable. That is a critical difference.


DISH is resting their entire case on the idea that KSM allows an already-adjudicated device to escape scrutiny. TiVo disagrees. For that reason, this isn't simply a case of "more than colorable = no contempt"

So let's suppose for the sake of argument a best-case scenario for DISH that the court finds the software to be more than colorable. That means new sales of the eight-named DVRs escape contempt.

But it does not address what happens to the already-adjudicated DVRS, the 4+ million already in the homes of customers at the time of the verdict.

This is where the precedence will be set in either case. It does not matter what his decision is, it will be the new standard by patent cases for field-modifiable devices are judged.

I suspect that Judge Folsom will require a somewhat higher level of court involvement for these devices. In other words, DISH will need to get court approval for changes to them. Once they get court approval and apply the changes, they are out of "contempt jail."

As a result, I believe that these devices will be held in contempt through, at the very least, the date of the hearing.

Of course, none of this matters if the software is merely colorable or there is still infrigement by DOE. In that event, all devices - new sales included - will be subject to contempt.

Edited by nobody99, 08 February 2009 - 10:22 AM.
Fix underline tag, typos


#65 OFFLINE   Curtis52

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Posted 08 February 2009 - 11:31 AM

TiVo hereby moves for an Order that EchoStar be held in contempt of court and that it be ordered to comply immediately with the Order “to disable the DVR functionality,” finally allowing the injunctive relief intended to protect TiVo to take effect.


Newly sold named DVRs are not the subject of TiVo's contempt motion. The already installed DVRs will be looked at for colorable difference at the hearing. Apparently, it matters. If it didn't matter, he would have already ruled on it.

#66 OFFLINE   nobody99

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Posted 08 February 2009 - 11:57 AM


TiVo hereby moves for an Order that EchoStar be held in contempt of court and that it be ordered to comply immediately with the Order “to disable the DVR functionality,” finally allowing the injunctive relief intended to protect TiVo to take effect.


Newly sold named DVRs are not the subject of TiVo's contempt motion. The already installed DVRs will be looked at for colorable difference at the hearing. Apparently, it matters. If it didn't matter, he would have already ruled on it.


Where does it say anything about not being newly-sold? There are three classes of DVRS that are currently installed in users homes:

1) Those present at the time of the verdict
2) Those that were installed after the verdict with the old software
3) Those that were installed after the verdict with the new software

So yes, some installed DVRs will be looked at for colorable difference (#3). But the quote you provided reveals nothing with relation to those DVRs that were installed at the time of the verdict (aka, the "convicted DVRs").

The text is already posted, on this page in fact, that TiVo believes there are three classes of DVRs in this motion (at least as far as damages go). I'm also curious how you stretch your citation ("to disable the DVR functionality") into a meaning that they must already be installed? It says nothing of the sort. It is basically saying that the eight-named models should no longer have DVR functionality. That's it.

#67 OFFLINE   jacmyoung

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Posted 08 February 2009 - 01:24 PM

The problem is you again continue to quote the 9/4/08 hearing. That one was over.

What you need to look at is the current order, in which there is absolutely no three classes, no distinction between those DVRs, but any and all 8 named DVRs. And the judge's ruling will be on all those DVRs.

TiVo no longer tries to separate those DVRs, TiVo's own proposed order did not try to separate them, and the judge's order does not separate them.

As I said, this is a new hearing, don't keep quoting the old ones.

#68 OFFLINE   jacmyoung

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Posted 08 February 2009 - 01:25 PM

Newly sold named DVRs are not the subject of TiVo's contempt motion. The already installed DVRs will be looked at for colorable difference at the hearing. Apparently, it matters. If it didn't matter, he would have already ruled on it.


I belive the newly sold 8 named DVRs are included too, simply because the order does not separate them, just that those DVRs that bear the 8 model numbers.

#69 OFFLINE   Greg Bimson

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Posted 08 February 2009 - 02:46 PM

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.

The E*'s 16 questions (as Greg put it) pretty much evolved around TiVo's public comments right after they received the above information and Rogers said his engineers told him the new software was impossible and could not have been true. Later in the court filing though TiVo said it still infringed, but "to be sure" TiVo asked for a disclosure of more design around details.

That disclosure request was denied by the judge after the 5/30/08 meeting.

If that which happened before this order for an evidentiary hearing on 17 February didn't matter, why is DISH/SATS spending so much of their time trying to discern what TiVo knew regarding the design around and CEO Rogers comments that the design around more than likely still infringed upon the Time Warp patent?

At this point, surprisingly enough, I will also ask for this thread to be closed. I am getting tired of arguments using the ping-pong theory: throw 1,000 ping-pong balls up in the air and paddle all them before they hit the ground. Sure, some will be missed, but some of these ping-pong ball arguments don't even matter.

#70 OFFLINE   Chris Blount

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Posted 08 February 2009 - 03:16 PM

Thread closed.




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