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Tivo vs. Dish: Petition for rehearing en banc granted


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#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.

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#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 OFFLINE   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.
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#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:)

#176 OFFLINE   jacmyoung

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Posted 08 June 2010 - 05:41 PM

Another reason why I think TiVo will likely propose a new amendment to the PTO Examiner in order to overcome the rejection, rather than appealing, is because the examiner in several locations explained to TiVo that the software claims 31 and 61 did not contain some claim terms TiVo used to argue for non-obviousness, such as the “downstream”, “pipeline” and “blocked” features. The implication is, if TiVo should propose to add those terms into the claim language of the claims 31 and 61, it would likely result in a recertification of the reexamination.

When TiVo proposed its amendment last time, it did not change the claim language of the claims 31 and 61 at all, only added some new dependent claims to them. Reading this PTO Final Action, such amendment clearly will not be good enough. TiVo will have to modify claims 31 and 61 themselves. Of course modifying the two claims themselves will easily make the new claims not “substantially identical” to the old claims, and we know what that means.

It is indeed a tough choice, amend the claims so to survive the rejection, but let E* off the hook, or not amend the claims rather appeal, which does not necessarily guarantee a win on en banc against E*, but will lose the right to assert the software claims against Verizon and ATT.

#177 OFFLINE   phrelin

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Posted 09 June 2010 - 12:23 PM

Well, reading the various reports in the business press, one has to conclude that there are other implications for TiVo, if nothing more than PR issues.

Unless the folks at TiVo remain just as stubborn as Charlie, as they seem to have been in the past, they really should be looking for someone to partner with or buy them. Counting on three lawsuits to make your operation profitable isn't a very impressive approach to management, particularly when only one - the 6½-year-old Echostar/Dish case - can reach a possible final result in a year or two and the other two involve the two largest telecom corporations in the U.S. plus Microsoft.

It's hard to imagine that the original post on this case was January 5, 2004.:nono2:

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#178 OFFLINE   jacmyoung

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Posted 09 June 2010 - 02:45 PM

Checked out Rambus today, another CAFC rehearing and big drop in price. The Rambus story of course has been ten times more dramatic than that of TiVo, and the investors into those IP stockes are screaming corruption.

Speaking of corruption, the similarity in all such patent cases is the PTO reexaminations and rejections of claims involved in the litigations. For a very long period of time due to funding cut, the PTO relied on filing fees to fill the gap, it fast tracked the patent application process and granted many patents that were very weak. That in addition to some district courts' fast track patent proceedings (such as that of the E. TX court) and favoring patent trolls (of course TiVo is not one of them), the business communities were hammered with negative rulings and many were forced to settle to avoid trials.

E* was one of the very few that started to fight back. Many of those investors unfortunately over the years got too personal with their stocks. They now believe in conspiracy theories, if so, they need to go back in time and look into how "corruption" at the PTO and some federal district court levels had actually inhibited innovation by granting weak patents then enforcing them, stifling competition.

I don't know much about the Rambus case, in the case of TiVo, a few companies such as Apple are said to have held back on their effort into the TV/DVR market because of fear of lawsuit or having to pay license fees.

#179 OFFLINE   scooper

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Posted 09 June 2010 - 03:28 PM

Then it sounds like the courts are going to be busy for a long time.

Personally - if we have to have patent office at all - fund it adequately so it can do a rigourous examination of every patent application so we can prevent these court cases in the first place . Much cheaper to deny a patent application that shouldn't be granted than to take it to court - for ALL parties involved !!!
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#180 OFFLINE   HiDefGator

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Posted 09 June 2010 - 04:38 PM

Much cheaper to deny a patent application that shouldn't be granted than to take it to court - for ALL parties involved !!!


yes but the percentage of patents that do anything other than collect dust is very small. and in the end any patent in a lawsuit will be dragged through the ringer anyway.




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