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TiVo vs. Dish: Judge orders Feb. 2009 hearing on infringement

Discussion in 'General DISH™ Discussion' started by Curtis52, Nov 20, 2008.

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  1. Dec 5, 2008 #601 of 1907
    scooper

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    Sure you can - the dividing line is where the DVR process has valid audio and video streams to start "recording" / processing out of the satellite receiver process. By the same reasoning - an ATSC DVR process will start after the DVR process has valid A/V streams out of the ATSC tuner process. Or, after an analog A/V signal has been converted to MPEG A/V streams by digitizing.

    So maybe the case law following Markman needs to be revised ? Whoever said that precedents are ALWAYS correct ?
     
  2. Dec 5, 2008 #602 of 1907
    CuriousMark

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    That sounds like a fuzzy line to me. A full transponder stream has valid audio and video streams in it. Parsing out the packets that correspond to the streams for a single channel would be to the right of the line you just drew, but I am sure you would prefer to consider it to be on the left, and logically it does fit more into receiver functionality than DVR functionality. My point being simply that a clear line, other than the border of the device itself can be hard to draw and may or may not be a fair one. Do you think your examples are a better line than the edge of the patented device itself? Can a subsystem of a device be considered alone for patent purposes after the whole device was previously litigated and has that kind of history? I suspect these are some of the questions that will be discussed in the upcoming briefs and hearing. It will be interesting to see how the attorneys argue this before the judge.
     
  3. Dec 5, 2008 #603 of 1907
    jacmyoung

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    While TiVo argues the new design still “parses” or analyzes, which seems to meet Step One, TiVo does not dispute the new design no longer uses the “index file” as a “temporary storage device”. The temporary storage device is another part of Step One.

    If only “parse” remains, not the “temporary storage device” in Step One, then one can say literal infringement is gone, for Step One that is.

    The question is then on the equivalents, can you say just because it still parses, even though it no longer have that temporary storage part, the Step One is still met on equivalents?

    I say no. Meeting a step in equivalents means:

    “Whether or not the accused structure or step performs substantially the same function, in substantially the same way, to achieve substantially the same result as the claimed limitation.”

    Based on that what James said makes sense. TiVo is now accusing the E* new design still uses the PID analyzer to meet the “parse” limitation on Step One.

    A PID analyzer is used in every one of the satellite receivers, whether C band, FTA, DBS or any other kind. A PID analyzer has nothing to do with DVRs, only satellite receivers. It most certainly does not perform substantially the same function, to achieve substantially the same result as the “parsing” described in TiVo’s claims which is for DVR functions.

    The reason E* met Step One before was because E*’s old design did use its own “index file” for temporary storage, and it also separated the incoming audio and video streams before storing them into the index file, and doing so required analyzing the MPEG streams first.

    E* no longer analyzes to separate the audio and video (at least not in Step One), and no longer stores them in the index file. E* still must use the PID analyzer, because the nature of the satellite operations necessitates the PID analyzer.

    Not to mention E* no longer uses “automatic flow control” in Steps 4 and 6.
     
  4. Dec 5, 2008 #604 of 1907
    scooper

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    Curiousmark - see jacmyoung's post #603 for the complete reasoning , paying particular attention to paragraph 7 (quoted below) -
    "A PID analyzer is used in every one of the satellite receivers, whether C band, FTA, DBS or any other kind. A PID analyzer has nothing to do with DVRs, only satellite receivers. It most certainly does not perform substantially the same function, to achieve substantially the same result as the “parsing” described in TiVo’s claims which is for DVR functions."
     
  5. Dec 5, 2008 #605 of 1907
    CuriousMark

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    Good description and analysis. Based on that it may not be the same, but that is not because it is outside some arbitrary line in the hardware or software. It is because it does not pass that particular test. And legally it is that test that counts in the decision. We have to be careful not to oversimplify.
     
  6. Dec 5, 2008 #606 of 1907
    scooper

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    I believe my dividing line is very clear and can probably be pointed out by the designing engineers to "what happens where" in each of these devices I used as examples. Echostar's engineers can probably point out to you exactly where on the circuitboard these functions are happening.
     
  7. Dec 5, 2008 #607 of 1907
    James Long

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    Each claim in the patent has a list of steps to perform the desired result.
    The challenge is to get to the desired result without following those steps.
    Perhaps the result can be reached with steps omitted or replaced.

    DISH claims that they have omitted or replaced enough to be clear of infringing the 'software' claims and they claim that they bypassed what infringed in the 'hardware' claims.
     
  8. Dec 5, 2008 #608 of 1907
    jacmyoung

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    It is less challenging if one can follow all but one step.

    The biggest problem as I said before, E* did not even try last time, they simply copied TiVo's patented technology without any modification and got caught.

    I sure hope they have learned the lesson and did it more carefully this time.
     
  9. Dec 5, 2008 #609 of 1907
    James Long

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    Not quite. They got in trouble because DISH's method was equivalent to TiVo's method, not because it was the same. The 'hardware' verdict was overturned because the appeals court disagreed with the jury's decision that the method was the same ... and since the jury was not instructed properly they did not find DISH guilty of infringement by the doctrine of equivalents. (That decision was remanded for Judge Folsom to take care of.)
     
  10. Dec 5, 2008 #610 of 1907
    jacmyoung

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    BTW, I would still appeal if I were E*, first to ask the Appeals Court to stay the order.

    Then the Appeals Court should vacate this order citing substantive infringement analysis premature in a contempt proceeding, as the Appeals Court once ruled themselves.

    I will then further argue that no more hearing is needed. The new design evidence in front of the court are substantial, more importantly, TiVo does not dispute such evidence. A question of colorable difference does not require that the evidences are solid, only substantial. The evidential hearing clearly is to ensure the evidences are solid, which is not necessary in a summary proceeding. The quantity will do.

    If the judge refuses to rule on such evidence the Circuit Court should force him to do so.

    IMHO, it is certainly worth a try.
     
  11. Dec 5, 2008 #611 of 1907
    jacmyoung

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    E* got lucky on that one, had the equivalents been used on the hardware claims, all verdicts would have been upheld.
     
  12. Dec 5, 2008 #612 of 1907
    Greg Bimson

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    I'm still trying to figure out where "the DVR process" cannot include "the receiver analysis process". Didn't see that in patent law anywhere.
    Exactly. And it met that limitation of the component of the step in the original trial.
     
  13. Dec 5, 2008 #613 of 1907
    scooper

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    That's because it's engineering and common sense, not law.

    And I (and others) already told you that Markman is wrong - overly broad . Markman needs thrown out / revised substantially.

    PID filtering is NOT analysis of the type that Tivo does in their DVRs to allow trick plays, etc.

    If you get rid of all analysis except PID filtering - your Tivo would not work - Dish's new process will.
     
  14. Dec 5, 2008 #614 of 1907
    Mainer_ayah

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    No, like I said, Charlie has the value of his company beat down so low that it would be hard for it to move much lower. (take a look at a one year chart for Dish, it is in direct proportion to Charlies management prowess)

    And yes, I know you don't care about the company stock price, after all, you are one of the few remaining individuals left on the planet that actually believe Dish actually downloaded a viable (or any kind of ) work around to the infringing devices.
     
  15. Dec 5, 2008 #615 of 1907
    Greg Bimson

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    So the telephone patent should be invalidated because the telegraph used the same wires?

    TiVo builds a box that decodes OTA digital, which requires a parsing of the OTA stream.

    Yep. Completely different. :(
     
  16. Dec 5, 2008 #616 of 1907
    scooper

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    Exactly the same principle - tuner section hands A/V streams off to the DVR process. Drop the "analysis" after the stream is coming and your Tivo falls flat. Dish's process goes on.

    What is so hard to see about this ?

    It's generic -
    Tuner => Dvr process => video display

    The DirectTivo works the same way -
    DirectTV Tuner => Dvr process => video display.

    You can do the same thing for cable TV DVRs
    Cable tuner (digital) => DVR process => video display
    cable tuner (analog) => digitizer => DVR process => video display

    It could all be done in modular pieces (and for prototyping - it probably is !)
     
  17. Dec 5, 2008 #617 of 1907
    jacmyoung

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    Then why are you still arguing with me on the point I have no interest in?


    I don't know how I don't care about TiVo or E* stocks has anything to do with the software download.

    There may be only few individuals left on the planet still believe E* downloaded any kind of work around, but as long as TiVo is one of them, what is your point?

    And if TiVo acknowledged everything E* said about the new download, then that is what all that matters isn't it? Why are you arguing with me again? Have you called TiVo to tell them how stupid they were?

    Now as far as whether TiVo believes the download is a viable one or not, that is what we are discussing right now, care to join us?
     
  18. Dec 5, 2008 #618 of 1907
    Mainer_ayah

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    There was no download of a viable workaround. Soon, you will understand.
     
  19. Dec 5, 2008 #619 of 1907
    jacmyoung

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    You conveniently left out the "temporary storage device (index file)" in that same step, which is no longer there in E*'s new design.

    So who cares if E* still parse the data? The important thing now is if the parsed data is still stored in that index file "temporarily" or not. The new design uses the PID analyzer, but does not store any data temorarily in an index file anymore, your step one is now out of the window.

    And I have not even started with the "automatic flow control" thing yet, you know this one is also out, not used anymore, which is described in the other two steps of the TiVo's claims.

    I will say this one more time, for the rest of the individuals on this planet who do not believe E* downloaded the new software, TiVo is not one of you, TiVo does not dispute the download, TiVo also does not dispute the removal of the "index file", TiVo also does not dispute the removal of the "media switch" which means the removal of the "automatic flow control".

    In fact TiVo knows the media switch is no longer there, so much so TiVo does not even dare to bring back the hardware claims.

    The only thing TiVo has to question the viability of the download is this so called PID anaylzer still in there, which is used in all sat receives, non DVRs or DVRs.

    Like scooper said, if you only care to use some common sense, can you honestly say TiVo's argument holds any water?
     
  20. Dec 5, 2008 #620 of 1907
    jacmyoung

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    You have said the above so many times, maybe it's time to try something new.
     
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