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The Tivo vs Echostar (mostly speculation) Thread

Discussion in 'General DISH™ Discussion' started by Rob Glasser, Apr 11, 2008.

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  1. jacmyoung

    jacmyoung Hall Of Fame

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    One of the justifications of motion for reconsideration is new evidence, period. You don’t need anything else. The whole reconsideration process will determine if such new evidence is indeed valid and if so whether such new evidence would have altered the outcome of the existing order.

    So in front of the judge, he has two piles of code printouts, each weighs about 50 lbs, one from the previous submittal during the trial, one just hauled in by DISH with fresh Kinko’s scent. They most definitely will look, read and word differently because they are two different codes. Here you have it, a new evidence, compared to the old pile which was used as evidence back then, and that is all that’s needed to justify the motion for reconsideration.

    Again I am not say this is what DISH will ask for, but this is how they will get the motion for reconsideration if they want to. You have posted it yourself how it is done, why argue with your own research results?
     
  2. Curtis52

    Curtis52 Hall Of Fame

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    That isn't evidence that they have non-infringing software. That's evidence they have software. They've always had software.
     
  3. Greg Bimson

    Greg Bimson Hall Of Fame

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    The reality is that DISH/SATS so infringed the Time Warp patent that Judge Folsom hurt them badly. A District Court judge will usually stay their own injunction, so they can deal with it when it comes back to their court. Once an appealed case is remanded to the District Court, the judge will look carefully over any new issues that may affect the case. This would include any workarounds to an existing patent, so that the wording of an injunction will allow the infringer to get the injunction revoked.

    Not here. Judge Folsom left the injunction to go into full effect because of the breadth of the infringement, but the Court of Appeals stayed it. Upon review, the stay was lifted and now the injunction is in full effect.

    New software is not new evidence.
     
  4. BNUMM

    BNUMM Hall Of Fame

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    The new software is not new evidence in the original charge that they infringed. The new software may be evidence that they no longer infringe. That evidence probably would not be considered until after the injunction is enforced.
     
  5. Herdfan

    Herdfan Well-Known Member

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    Teays...
    Actually, if the SCOTUS denies DISH's appeal, should the court not turn over the funds DISH put up for past infringement? DISH would have hit the end of the road on that case.
     
  6. James Long

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

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    Well, I, for one, I'm glad that you have no responsible position in this matter. :)

    "This particularly rapid, unintelligible patter, isn't generally heard, and if it is, it doesn't matter."
     
  7. inkahauts

    inkahauts Well-Known Member

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    Its not new evidence in the past infringement... It wasn't around then. I think the question here is, is the new software proof that Dish is no longer infringing and there for should not be held in contempt for not complying because the units are no longer using infringing software, which is what the injunction was against, yes?.... I don't think it should be considered NEW evidence. I think it should simply be considered evidence of compliance....

    The way I see it Dish owes Tivo no matter what, the question is how much, and does it still owe and for how much longer?
     
  8. James Long

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

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    The only reason to see the new software as new evidence in the old case is if they can somehow get the injunction changed. If not ... it is evidence that they are no longer infringing and their DVRs are more than colorably different than the ones named in the injunction.
     
  9. inkahauts

    inkahauts Well-Known Member

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    I wouldn't see the point in that even if they get the injunction changed. It has no effect on whether or not Dish ever used the infringing software. Its not like patent law says that you can steal a patent for x amount of days without penalty...

    I think that the judge would only talk about new software ever if it is in regards to still infringing vs. not..... I see no legal way that the new software could possibly effect the past infringements of Dish, as found by the jury and therefor has absolutely nothing to do with Dish ever trying to get anything overturned.
     
  10. davemayo

    davemayo Hall Of Fame

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    This issue, patent exhaustion, is currently before the Supreme Court in LG v. Quanta.
     
  11. jacmyoung

    jacmyoung Hall Of Fame

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    I generally agree which was why I kept saying only if DISH wanted to use the motion for reconsideration option then they would use the new software code as new evidence. But I did not think they needed to go that route at all.

    But as long as we are discussing the issue of motion to reconsider a prior order, you can not say the new software can not be a new evidence, because the old software code were used as evidence to produce the order. Can't have it both ways. The old software codes were used as evidence to find DISH in violation, of course the new software codes must be allowed to be considered as new evidence. Whether the new evidence is a valid one or not is for the judge to decide, but don't say it can not be a new evidence.

    As for the timing of the new evidence, if I understand it correctly Greg and Curtis were saying it should have been introduced before the judgment/order, not after, but if new evidence must always be introduced prior to the order, why have this thing called motion to reconsider to begin with? If you read the law, the purpose of motion to reconsider is precisely so new evidence can be intruduced after the order, not before, otherwise there will be no need for motion to reconsider.

    At this time DISH is not even trying to get anything overturned, they are only trying to tell the judge they are in compliance, not in contempt. The hardware verdict was already overturned for them by the appeals court.

    All DISH is saying now their new software also no longer infringes. So they are in compliance with the injunction order. Simple as that.
     
  12. BNUMM

    BNUMM Hall Of Fame

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    I believe they are talking about evidence that existed before the original trial but was missed for some reason.
     
  13. gully_foyle

    gully_foyle Hall Of Fame

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    "Cooperation" can be like "please do this" or it can be like the US Marshal's Service taking possession of the ground stations. Or it can be the CEO and such in the slammer for contempt for as long as it takes.

    Do you seriously argue that DISH can thumb its nose at a Federal court and not expect severe (and perhaps existential) consequences? Does DISH have no stockholders? I'd be rips**t if this was a company I owned some of.
     
  14. jacmyoung

    jacmyoung Hall Of Fame

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    By reading what Curtis researched, it does not limit when the new evidence must existed. But I see your point, and I never seriously considered motion to reconsider an option anyway. There is no need to change the order, DISH believes it is in compliance with the order and they will try to prove it in a contempt hearing.
     
  15. gully_foyle

    gully_foyle Hall Of Fame

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    Nor is there evidence that even if it works, it is used in one or all DVRs mentioned. Might claim hardware not present. Might work and yet still be found to infringe. Assuming that some patent application has even been made.
     
  16. BNUMM

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  17. Curtis52

    Curtis52 Hall Of Fame

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    The whole point of the case law I quoted was that there needs to be finality in judgments. The case can't be retried every time the defendant says they've revised the software. The evidence would have to be overwhelming and obvious on its face that the new software doesn't infringe to reconsider the injunction. There is no such evidence.
     
  18. jacmyoung

    jacmyoung Hall Of Fame

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    Unfortunately having a finality was not the whole point of that case law, there was another point, that was if new evidence exsits, it can be justification for motion to reconsider.

    But that wasn't even something to debate about, because I don't think DISH is even going to try that. DISH is saying they are in compliance with the injunction order, why?

    Because their new software no longer infringes, and their hardware never infringed in the first place as far as this trial is concerned.
     
  19. Greg Bimson

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    New evidence. Like at a murder scene, where two people are convicted of killing a police officer. Yet upon reviewing the tapes of an ATM machine a year later produces a third person, the only one that shot the police officer. That's new evidence.

    New evidence is based upon the events that occurred during a given timeline. That is what is tried. People are forgetting that DISH/SATS was found guilty of willful infringement of the Time Warp patent. There isn't any "new evidence" to support a reversal of that verdict.

    What you are all looking for is a show-cause order. The judge would ask the defendant why they should not be the subject of an injunction. No longer infringing would be a reason to cease an injunction.

    But what you are all forgetting is that the injunction is based upon PAST INFRINGEMENT. It is up to DISH/SATS to prove the new software does not infringe. Therefore the judge could simply stay the injunction so DISH/SATS can continue on selling and have their customers use the functions of their DVR's. The judge could also schedule a hearing to determine infringement of the new software and keep the injunction active and in full effect.
    In compliance with what? This is the point that frustrates me. There are no compliance terms in the injunction order to lift the injunction.
    Not that simple. The compliance terms of the injunction order are to stop selling 501, 508, 510, 625, 721, 921 and 942 receivers. DISH did stop selling the last three in the list. Why? Because they didn't update the software. But a receiver running old software on the 721 and a receiver running the new software on the 510 are no longer to be sold, and that is the compliance in the injunction we have been discussing the entire time.

    And still not that simple, because no one knows whether or not the new software infringes. Yet TiVo has been awarded a positive decision in a court of law because another party was found guilty of infringement on TiVo's patents. The court system is supposed to hold everything up while DISH/SATS gets their crap in order to fight this injunction, because they were found guilty?
     
  20. jacmyoung

    jacmyoung Hall Of Fame

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    So long as you still wanted to argue on this issue, let me inform you that there is in fact new evidence you try to seek, that new evidence is that the hardware verdict was reversed. Keep in mind when the order was handed down, both software and hardware verdicts were produced, and the order followed based on both, but now we know the hardware verdict was overturned. Can you not see it as a new evidence?

    Correct, and that is what DISH is trying to show, that their new software no longer infringes, and their hardware never infringed. But according to you and Curtis, DISH simply can not show those, because the injunction did not allow them to show those? DISH does not need the injunction to allow them to show that they no longer infringe. They just have to show, and if the judge agrees, they will not be in contempt. The injunction does not have to be ceased, as long as DISH is not in contempt, that is all DISH needs.

    Now we are getting somewhere.

    Of course he can, and while he is doing so DISH's DVR's continue to work. And if after the hearing the judge agrees with DISH, DISH is not in contempt, if he disagrees with DISH, DISH will appeal. Meanwhile DISH's DVR's continue to work. And since DISH is so confident their new software no longer infringes, that is what they will argue and appeal if necessary.

    Of course there are compliance terms, not to lift the injunction, rather so not in contempt of it. One of such terms is if the software no longer infringes, the other of such terms is the hardware no longer infringes, which it never did.

    But according to you and Curtis, even if DISH can prove their new software no longer infringes, and BTW their hardware never infringed, that is still not enough?
     
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