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Tivo vs. Dish: Petition for rehearing en banc granted


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#151 OFFLINE   Curtis52

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Posted 05 June 2010 - 04:43 PM

Ok. Thanks, I think I now understand your point.

No problem.

#152 OFFLINE   jacmyoung

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Posted 05 June 2010 - 11:14 PM

No problem.


There is one big problem, by your own stats, which we had confirmed, after claim rejection in a PTO reexamination, 59% of the time the claims end up being cancelled or modified, in both situations the judgment/damages against E* would not stand.

The question is then, would a reasonable judge or a panel of judges impose such judgment/damages knowing the judgment/damages are more likely than not (59% to 41%), wrong?

The fact that TiVo even tried to amend the claims in order to overcome the rejection, without success, makes the odds for claim cancellation or modification much greater.

Edited by jacmyoung, 05 June 2010 - 11:21 PM.


#153 OFFLINE   James Long

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Posted 05 June 2010 - 11:52 PM

At the time DISH violated the patent the patent was in force.

What you're suggesting is like retroactively fighting a speeding ticket because the speed limit was later raised on the road where the ticket was issued. If the sign says 55 the speed limit IS 55 regardless of if the signs are changed to 70 years later.

So regardless of the current status of the patent, DISH was found guilty of violating the patent as it existed when they violated it. This may make a future work-a-round easier ... but it does not change the facts of the case.

The questions that the en banc panel are asking remain regardless of the patent. We're a long way from over.

#154 OFFLINE   jacmyoung

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Posted 06 June 2010 - 08:47 AM

At the time DISH violated the patent the patent was in force.

What you're suggesting is like retroactively fighting a speeding ticket because the speed limit was later raised on the road where the ticket was issued. If the sign says 55 the speed limit IS 55 regardless of if the signs are changed to 70 years later.

So regardless of the current status of the patent, DISH was found guilty of violating the patent as it existed when they violated it. This may make a future work-a-round easier ... but it does not change the facts of the case.

The questions that the en banc panel are asking remain regardless of the patent. We're a long way from over.


There is one huge difference, in the case of the PTO rejection and claim cancelation or change, it is as if that specific speed limit was never there, and will never be in the future. That is why once the claims are canceled, or recertified with changes that are "not substantially identical," liabilities prior to the cancelation or recertification no longer exsit even if they were found by the court before. The law is the law, I have posted the law before.

The only issue that might continue to be asked is the issue of the contempt of the court. Though I had also looked at its real impact in the event it is affirmed but without infringement/damages, the impact will be very little.

BTW, looking at some stats, the chance for claim affirmation after final rejection has been around 25% only.

#155 OFFLINE   jacmyoung

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Posted 06 June 2010 - 08:41 PM

Some new items on the CAFC Pacer site:

MOTIONS AND OTHER ENTRIES
>> Please Note: Motions are listed first. Entries are listed last.<<
5/25/2010 MOTION: Entry 102 :by Appellants - Defendants-Appellants' Motion For Extension Of Time (from June 25, 2010 to July 26, 2010) To File Opening En Banc Brief SERVICE : by Mail on 5/25/2010
. REPLY 1: 5/27/2010 , Entry # 103
. REPLY 2: 5/27/2010 , Entry # 104

ACTION: Entry 105:Granted. Appellants may file an opening en banc brief by July 26, 2010. Filed: 6/1/2010


It appears on 5/25 E* had motioned to extend opening brief filing date from 6/25 to 7/26, two relies were filed on 5/27, the motion was granted on 6/1.

#156 OFFLINE   jacmyoung

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Posted 07 June 2010 - 07:41 AM

Just a thought, the above could indicate E* was preparing for some activities before 7/26, then they might incorporate the issues in the opening brief, if so, the only two likely places those can happen are before Judge Folsom, and/or between E* and TiVo.

Edited by jacmyoung, 07 June 2010 - 07:47 AM.


#157 OFFLINE   HiDefGator

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Posted 07 June 2010 - 10:59 AM

Or they just saw a chance to stall this entire process for another 30 days and stuck to their game plan.

#158 OFFLINE   dgordo

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Posted 07 June 2010 - 11:29 AM

Getting the en banc hearing already added another year to the process, i don't think they care about those 30 days that much.

#159 OFFLINE   HiDefGator

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Posted 07 June 2010 - 11:35 AM

Getting the en banc hearing already added another year to the process, i don't think they care about those 30 days that much.


if a 12 month delay is good, a 13 month delay is better.

#160 OFFLINE   Curtis52

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Posted 07 June 2010 - 11:42 AM

Getting the en banc hearing already added another year to the process, i don't think they care about those 30 days that much.

The hearing date hasn't changed.

#161 OFFLINE   HiDefGator

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Posted 07 June 2010 - 11:49 AM

The hearing date hasn't changed.


but it almost has too. if you move E*'s filing out a month then you have to move Tivo's filing out as well. which then requires E*'s reply to be moved out too. The judges will still need time to review everything before oral arguments.

unless Tivo doesn't care what E* files and is willing to file their brief a week after E* files. Not sure why Tivo would agree to that.

#162 OFFLINE   jacmyoung

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Posted 07 June 2010 - 06:09 PM

One other item on the Pacer site deserves a note. Recall after those 5 professors’ briefs were filed, their attorney filed a letter explaining the professors’ connection to the parties. It looked to me that letter was later rejected by the CAFC on some procedural ground.

If so, the professors’ background will not be part of the record. This may support the view that the en banc panel will not consider the professors’ “motive”.

On the E*'s motion for the 30-day extension, it was granted before the oral argument was scheduled, so no more delays, if there was one.

#163 OFFLINE   tsmacro

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Posted 08 June 2010 - 02:05 PM

DISH Network and EchoStar Statement Regarding PTO Ruling





ENGLEWOOD, Colo., June 8, 2010 /PRNewswire via COMTEX News Network/ -- DISH Network L.L.C., a subsidiary of DISH Network Corporation (Nasdaq: DISH), and EchoStar Technologies L.L.C., a subsidiary of EchoStar Corporation (Nasdaq: SATS), issued the following statement regarding recent developments in TiVo vs. EchoStar Communications Corporation:

"We are pleased the Patent and Trademark Office issued a Final Office Action maintaining its rejection of the software claims of TiVo's patent. These software claims are the same claims that EchoStar was found to have infringed in the contempt ruling now pending for en banc review by the Federal Circuit. In the Final Office Action, three examiners of the PTO considered TiVo's response and, in a detailed 32-page decision, finally concluded that the software claims were unpatentable in view of two prior art references."

About DISH Network

DISH Network L.L.C., a subsidiary of DISH Network Corporation (NASDAQ: DISH), leads the pay-TV industry in technological breakthroughs and provides more than 14.3 million satellite TV customers, as of March 31, 2010, with the highest quality programming and technology at the best value. Customers have access to the most HD channels, the most international channels, state-of-the-art interactive TV applications, and award-winning HD and DVR technology including the ViP 922 SlingLoaded DVR, the world's only DVR with TV Everywhere functionality. DISH Network Corporation is included in the Nasdaq-100 Index (NDX) and is a Fortune 200 company. Visit www.dish.com, follow on Twitter, @dishnetwork (www.twitter.com/dishnetwork), or become a Fan on Facebook, www.facebook.com/dishnetwork.

About EchoStar Corporation

EchoStar Corporation (Nasdaq: SATS) provides equipment sales, digital broadcast operations, and satellite services that enhance today's digital TV lifestyle, including products from Sling Media, Inc., a wholly owned subsidiary. Headquartered in Englewood, Colo., EchoStar has 25 years of experience designing, developing and distributing advanced award-winning television set-top boxes and related products for pay television providers and creates hardware and service solutions for cable, telco, IPTV and satellite TV companies worldwide. The company includes a network of 10 digital broadcast centers. EchoStar also delivers satellite services through 10 owned and leased in-orbit satellites and related FCC licenses. Visit www.echostar.com.

SOURCE DISH Network Corporation


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#164 OFFLINE   Matt9876

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Posted 08 June 2010 - 02:05 PM

Copy of PTO ruling from another Dishnetwork forum:


DISH Network and Echostar Statement Regarding PTO Ruling
ENGLEWOOD, Colo. – June 8, 2010 – DISH Network L.L.C., a subsidiary of DISH Network Corporation (NASDAQ: DISH), and EchoStar Technologies L.L.C., a subsidiary of EchoStar Corporation (NASDAQ: SATS), issued the following statement regarding recent developments in TiVo vs. EchoStar Communications Corporation:

“We are pleased the Patent and Trademark Office issued a Final Office Action maintaining its rejection of the software claims of TiVo's patent. These software claims are the same claims that EchoStar was found to have infringed in the contempt ruling now pending for en banc review by the Federal Circuit. In the Final Office Action, three examiners of the PTO considered TiVo's response and, in a detailed 32-page decision, finally concluded that the software claims were unpatentable in view of two prior art references.”


Great news for Dish and your DVR :)

News Headlines:TiVo shares fall after patent office rejects claim.

Edited by Matt9876, 08 June 2010 - 02:20 PM.
More info


#165 ONLINE   harsh

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Posted 08 June 2010 - 02:42 PM

The TiVo response:

"While TiVo is disappointed with this recent PTO office action, this is just one of several steps in the review process. We will continue to work with the PTO to explain the validity of the claims under review. It is important to note that TiVo received a "final action" holding several claims invalid during EchoStar's first reexamination request at this juncture only to have the PTO ultimately uphold the validity of all claims of the patent.

Moreover, the PTO proceeding is separate and apart from the ongoing litigation against EchoStar and does not impact the current United States Court of Appeals en banc review of the district court's finding of contempt against EchoStar and the related injunction."


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#166 OFFLINE   jacmyoung

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Posted 08 June 2010 - 02:44 PM

The PTO’s final rejection doc is now available. The final rejection continues to state the following:

Examiner note: The parsing of video and audio data is interpreted to mean detecting video frames and then generating an index or table of the start of the detected video frames and their storage location on a hard drive.


While Judge Folsom ignored the above PTO’s statement last time, we will see if E* will bring this one up again, the difference is this time E* has clear evidence that TiVo did not dispute the above PTO’s interpretation.

The record is clear that E*’s modified DVRs no longer “parse audio and video data” as required by the PTO interpretation above. While TiVo continues to insist that the PTO action will be irrelevant to the court proceedings, any reasonable person should agree that the E* modified DVRs do not infringe, because TiVo does not dispute that the modified DVRs no longer detect start codes (start of the detected video frames) and does not generate an index or table of such start codes. TiVo’s argument was that the start codes and index table were irrelevant to the software claims. Now they are relevant, not only relevant, but required.

Another issue is the TiVo’s proposed claim amendment. The PTO examiner did not enter such amendment because either the amendment did not directly address the examiner’s previous requests, or it was filed too early. That in conjunction with TiVo’s statement today, may indicate that instead of appealing the Final Action, TiVo may continue to propose claim amendment to try to overcome the rejection, if so, and if the PTO decides to accept any claim amendment and recertify the reexamination, E* will likely be free of any past liabilities, and/or any future liabilities.

#167 OFFLINE   Curtis52

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Posted 08 June 2010 - 02:58 PM

" Press Release Source: TiVo On Tuesday June 8, 2010, 3:53 pm EDT

ALVISO, CA--(Marketwire - 06/08/10) - TiVo Inc., the creator of and a leader in television services and advertising solutions for digital video recorders (DVRs), offered the following statement on the United States Patent and Trademark Office (PTO) decision.

"While TiVo is disappointed with this recent PTO office action, this is just one of several steps in the review process. We will continue to work with the PTO to explain the validity of the claims under review. It is important to note that TiVo received a "final action" holding several claims invalid during EchoStar's first reexamination request at this juncture only to have the PTO ultimately uphold the validity of all claims of the patent.

Moreover, the PTO proceeding is separate and apart from the ongoing litigation against EchoStar and does not impact the current United States Court of Appeals en banc review of the district court's finding of contempt against EchoStar and the related injunction.""

#168 OFFLINE   tsmacro

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Posted 08 June 2010 - 03:08 PM

Well the latest announcement ought to be good for a few hundred more posts of people arguing what it all means i'd guess.


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#169 OFFLINE   jacmyoung

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Posted 08 June 2010 - 03:28 PM

What's interesting is, every news outlet considers this a big news today, when in fact we had made the news first available here last Friday.

Just because TiVo wants the PTO issue to be separate, does not mean E* will let it be. We shall see what happens. E* does not have to rely on this PTO action, but they can try.

#170 OFFLINE   James Long

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Posted 08 June 2010 - 03:33 PM

What's interesting is, every news outlet considers this a big news today, when in fact we had made the news first available here last Friday.

Major companies issuing press releases tends to make the news. :)

The major stock effect was an hour before closing ... and both DISH and Tivo put their releases out at close of market.

#171 OFFLINE   scooper

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Posted 08 June 2010 - 03:40 PM

Major companies issuing press releases tends to make the news. :)

The major stock effect was an hour before closing ... and both DISH and Tivo put their releases out at close of market.


So any "big" market impact should be seen tomorrow , if any.
You CAN put antennas on your owned and/or controlled property...

http://www.fcc.gov/mb/facts/otard.html

#172 OFFLINE   James Long

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Posted 08 June 2010 - 03:50 PM

So any "big" market impact should be seen tomorrow , if any.

I'm not sure how much is left for Tivo ... I mentioned the artificial high that they were at until the en banc review was granted. Now they are back to the level they were before the jump last June. Stockholder reaction seems almost moody.

BTW: I don't own stock in any particular company. I have an IRA that is invested in a fund that invests in stocks but I have not looked at their investment list lately.

#173 OFFLINE   jacmyoung

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Posted 08 June 2010 - 03:58 PM

I'm not sure how much is left for Tivo ... I mentioned the artificial high that they were at until the en banc review was granted. Now they are back to the level they were before the jump last June. Stockholder reaction seems almost moody.

BTW: I don't own stock in any particular company. I have an IRA that is invested in a fund that invests in stocks but I have not looked at their investment list lately.


One analyst valued TiVo at $5 without this lawsuit. That was earlier this year, the overall market has since come down quite a bit. There is still a lot of room to drop if TiVo loses on en banc or something else unexpected surfaces.

Of course TiVo can also win the next round, anything is possible.

As far as whether this PTO Final Action is separate from the court case or not, while TiVo wants people to think so, let's not forget last time when E* motioned the appeals court to take judicial notice of the PTO Initial Office Action, TiVo opposed it on the same ground, but the motion was granted. E* can motion the appeals court to take judicial notice of this Final Action as well, if so, the motion will likely be granted too.

Whether the judges will reply on the PTO actions or not is at the judges' own discretion. Obviously the panel majority did not rely on the Initial Action, they went against E*, but did Judge Rader rely on the Initial Action in any way at all? He did not mention the PTO action, but no one knows if he was in any way influenced by it.

Edited by jacmyoung, 08 June 2010 - 04:36 PM.


#174 OFFLINE   HiDefGator

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Posted 08 June 2010 - 04:28 PM

Of course TiVo can also win the next round, anything is possible.


not this year...

#175 OFFLINE   jacmyoung

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Posted 08 June 2010 - 04:35 PM

not this year...


I did not say it has to be the en banc review. Though at this moment, it is difficult to see what good can come TiVo's way any time soon.

A settlement with E* would:)




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