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. jacmyoung

    jacmyoung Hall Of Fame

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    Again if you had listened to our advice and read our past posts, you would have already gotten the answer, rather continued to waste our time to do the answer for you.

    The Federal Circuit gives the district court judges wide latitude to frame their orders and proceedings, meaning the appeals court will not inferfere how Judge Folsom conducts his business.

    However whatever Judge Folsom's ruling, if the party who is subject to such ruling appeals the ruling on the ground that Judge Folsom has abused his discretion, it will be the Federal Circuit's job to determine if the district court did in fact abuse its discretion or not, if the answer is a yes, the ruling will be overturned by the higher court.
     
  2. jacmyoung

    jacmyoung Hall Of Fame

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    The above ruling you quoted further confirmed what I have said, which has been what the Federal Circuit has been saying since KSM.

    In a contempt proceeding, the only thing the court needs to do is to conduct a colorable difference analysis, which is to compare the old devices to the modified devices, and to determine if the differences are only colorable.

    If the differences are only colorable, the defendant is in contempt, end of story.

    But if the differences are more than colorable, there is no contempt. But why the Court then say the defendant was then allowed to challenge the claim validity? Only because after a no contempt, the plaintiff can still file a "new action" to continue to ask the district court to determine if the modified devices are still an infringement or not. In that new action, an infringement analysis will be conducted, and therefore the claim validity can be challenged, because claim validity determination is one of the two steps in an infringement analysis.

    In this case, TiVo is trying to do two actions in one shot, and the judge has so far allowed both actions to take place in one hearing. This is actually an abuse of the court's discretion, because the appeals court has said many times, the two actions must be separate, independent of each other.

    But at a minimum, if you want to do the two things together, for sake of court economy, then you need to allow E* to challenge TiVo's claim validity.

    This is exactly what the judge did, allowing E* another 2.5 hours to challenge TiVo's claim validity. And that was exactly what E* did in its expert disclosures, after the judge gave E* the extra 2.5 hours, to disclose to TiVo that how E* intended to challenge TiVo's claim validity in the hearing.

    Of course TiVo did not like that idea, therefore TiVo is motioning the judge to disallow E* from doing the extra 2.5-hour work the judge had just allowed E* to do previously.
     
  3. dgordo

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    And KSM holds that colorable difference is a predicate question in contempt proceedings, but neither KSM nor any other Federal Circuit decision holds that a district court must or even should hold a separate hearing on colorable differences.
     
  4. Greg Bimson

    Greg Bimson Hall Of Fame

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    Uh, KSM states that a device accused of infringement against an injunction against infringements must be evaluated for both its infringement status and its colorable difference status.
    No, this is an evidentiary hearing to determine contempt, and the evaluation is whether or not the devices found infringing are continuing to infringe and the status of the colorable difference between the old and modified devices. And there is plenty of case law to back that up provided by TiVo if you care to read it.
    Your opinion, which is incorrect. See above.
    The challenge to the claim validity cannot happen. It is already a basis for the devices found to infringe and a part of this case.
     
  5. the judge

    the judge Duplicate User (Account Closed)

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    Well let's see. I just posted the three orders in the injunction, so I must have read it, so you're dead wrong on that attack.

    If you believe the injunction has two orders and the second one is the order to shut off the 8 DVRs like jacy, then you are dead wrong again, and you might go back and read it again, or you could read the post you are quoting to attack me (against Forum rules I might add).

    So oddly, while I properly corrected jacy's ridiculous claims that "the second order in the injunction (disabling the DVR functions in the 8 named DVRs)" is in fact, the third order, and "that the hearing will address only one thing in the injunction" when in fact it will address two very different things, you have chosen to launch a baseless attack on my response rather than weigh in on jacy's statements. It's bewildering.

    At this moment, there are three motions before the Court. One of them is Tivo's Motion for Contempt. Do you have any idea what the other two even are?
     
  6. the judge

    the judge Duplicate User (Account Closed)

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    Excellent! We finally agree, although it took a little while. Thank you for conceding that it's not true that "if [Folsom] refuses [to find colorable differences] and still tries to find an infringement and a contempt, E* can now appeal to have that overturned, because once the difference is more than colorable, the contempt motion must be denied."

    We now agree that Folsom has wide discretion, that Echostar will always have it's right to appeal, but that the appeals court will not automatically deny the motion for contempt. I think this is a breakthrough!
     
  7. James Long

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

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    It isn't an attack ... you quoted portions of the injunction. You show no proof of reading the THREADS discussing this issue which is what I specifically referred to. In that, you have failed to prove that you even read the post you responded to ... you just clipped a quote and shouted what you wanted to say. Please read before responding.

    I'll leave forum rules to PMs, infractions and the notice one sees when banned. If you have any questions feel free to PM me.

    The use of the phrase "dead wrong" is insulting ... especially when you are more wrong than the person you accuse. Please cease immediately. End public warning.

    Yes I do. Neither of them change the February 17th-18th hearing to be any more than I have stated. That hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction. Judge Folsom asked for more information, initially "in the form of a bench trial" (not a bench trial but following that format) but in his clarifying order he removed that term.

    Numbering the parts of the injunction is minor problem ... sensible people know what were talking about and are not hung up on minor errors. Claiming that the February 17th-18th hearing is about more than the Motion for Contempt and calculating damages is major. This is where fabrication, falsification and intellectual dishonesty come in. Or not. I'd prefer to talk about what *IS* on the schedule for February 17th-18th rather than what someone's fantasy of what is on the schedule is.

    Enough said ... if you are confused as to what the hearing is about you can read the order again. Not just quote it, but read it. Then read the Motion for Contempt that it refers to. Not just quote it, but read it.

    Back to topic.
     
  8. the judge

    the judge Duplicate User (Account Closed)

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    I quoted VERBATIM the Orders contained in the injunction. That trumps the THREADS that yak about what it says.

    Let's agree that means you will give me a "point" if I disagree with you.

    If you would read the Forum, you would know that "dead wrong" means at least 100% wrong. It's not an insult at that level, it's a fact.

    So what you're saying is "quoting the Order" offers less credibility than your "regurgitation of the Order" and thereafter offering your baseless, unsubstantiated interpretation of what Folsom "meant to say". I prefer to go with the "facts" of the case. How about we agree to base our arguments on the facts? I doubt I'll get an agreement on that.
     
  9. jacmyoung

    jacmyoung Hall Of Fame

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    You need to quote KSM to support the above assertion.
     
  10. James Long

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

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    The point is that you are often not reading what you're posting or replying to. The comprehension level is low. You're making statements that in your words would be "totally wrong" and being insulting while making them. We can discuss the topic without those comments.

    As long as you understand that the February 17th-18th hearing is about the Motion for Contempt on the face of the injunction you'll do fine. If you don't understand the basics then anything else you say is worth less.

    If you have any other comments on the forum or moderation use PMs. Back to topic. Tivo vs Echostar. The actual case.
     
  11. dgordo

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    All from KSM

    "contempt proceedings should be conducted and contempt found where an enjoined device and an accused device were "merely colorably different," and that in order to determine whether two devices are "merely colorably different," the accused device must be compared to the adjudged device under a "doctrine of equivalents":

    f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though different in name, form or shape."

    "a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."

    "the initial question to be answered in ruling on a motion for contempt is whether contempt proceedings are appropriate. That question is answered by the trial court's judging whether substantial disputed issues must be litigated. The second question, whether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement."
     
  12. jacmyoung

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    The above describes how "colorable difference analysis" is performed, notice no patent claim limitations are mentioned, only comparing two devices:



    Again no mentioning of patent infringement issue at all, only to compare how different the two devices.

    This above statement seems to support your assertion, until you realize it is based on first answering the question below:

    If the answer is that substantial disputed issues must be litigated (meaning the differences are more than colorable), the contempt proceeding will be inappropriate, i.e. the contempt motion will be denied.

    However if no substantial disputed issues (meaning the difference is only colorable) must be litigated (meaning a new trial will be unneccessary), then:

    It takes a lawyer to read the above to make correct sense out of them:)
     
  13. James Long

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

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    Perhaps you should leave it to the lawyers then? :D
     
  14. Greg Bimson

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    Yes, but it didn't take a lawyer to prove you wrong... :)
     
  15. the judge

    the judge Duplicate User (Account Closed)

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    So we finally agree that jacy's numbering in the injunction order was an error, minor or otherwise it detracted from his credibility.

    But now we have two people declaring what the upcoming hearing is about, and both are wrong:

    Jacy claims the hearing is "to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs)." I've shown that to be wrong.

    James now claims the "hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction." This too is wrong, as there will be no discussion, argument, debate or even the slightest mention of dollar amounts of damages during the hearing. While Echostar has admitted they owe Tivo at least $16,000,000 more, the focus on damages can not take place until Folsom decides the issues related to continuing infringement and both sides can assess damages from the same starting point.

    So we've shown once again that neither jacy nor James know what's going on at this hearing, or their just making it up as they go along to incite argument.
     
  16. jacmyoung

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    That was my point, he is a lawyer, hence the comment, Greg is not a lawyer, I don't blame him for reading it wrong:)
     
  17. the judge

    the judge Duplicate User (Account Closed)

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    It's now clear that you don't understand that the Court determines what it will hear and not the movants. The movants get to ask whatever they want, but the Court gets to decide what will happen and when. So for example while Tivo asked for a few things, the Court said first we'll address the question of infringement (colorable or otherwise). That would make the most sense because you can't calculate damages until you answer that question. And while both Echostar and Tivo have briefed Folsom on damages, they both made different assumptions and it's likely that both will have to go back and brief him again AFTER he makes a ruling on whether there is continued infringement. He will absolutely NOT have "enough information to answer all of the questions in the Motion".

    So when you claimed that the "hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction", you guessed it, you were dead wrong.

    Here's the entire freakin Order from the Court. If you would be kind enough to show us where this hearing refers to damages I'll apologize. If it doesn't, I hope you are big enough to apologize to us.

    O R D E R
    Before the Court is TiVo’s Motion to Hold EchoStar In Contempt For Violation Of This Court’s Permanent Injunction. Dkt. No. 832.
    The Court will hold an additional evidentiary hearing on this matter on February 17-18, 2009 to determine (1) whether the software downloaded to EchoStar’s DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 is no more than colorably different from the adjudged software; and (2) whether these receivers continue to infringe claims 31 and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present its case, excluding time related to opening, closing, and transition statements.

    IT IS ORDERED that the following discovery limitations shall apply to this matter.
    1. Disclosures. To the extent not already disclosed, by December 9, 2008, each party shall disclose to every other party the following information:
    a. the legal theories and, in general, the factual bases of the disclosing party’s claims or defenses;
    b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons’ connection with the case, and a brief, fair summary of the substance fo the information known by any such person;
    c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:
    i. the expert’s name, address, and telephone number;
    ii. the subject matter on which the expert will testify;
    iii. if the witness is retained or specially employed to provide expert testimony
    in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:
    (a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and (b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;
    iv. for all other experts, the general substance of the expert’s mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.
    2. Additional Disclosures. By December 9, 2008, each party, without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.
    3. Discovery Limitations. In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts.
    4. Pre-hearing disclosure. Each party shall provide to every other party within 7 days of the trial the following:
    a. the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises;
    b. the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony;
    c. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises;
    d. an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises.
    5. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.
    IT IS FURTHER ORDERED that the following deadlines shall apply to this case.
    Date Event
    December 24, 2008 TiVo’s Expert Disclosures Due
    January 7, 2009 EchoStar’s Expert Disclosures Due
    February 10, 2009 Parties’ Proposed Findings of Fact and Conclusions of Law due
     
  18. James Long

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

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    The MOTION FOR CONTEMPT refers to damages, although not the damages that were discussed (and not decided) at the previous hearing. Damages during the stay ARE still on the table. They were discussed during the last hearing but not decided.

    Without knowning WHEN DISH ceased infringing (since DISH claims to have ceased infringing during the stay) the court will need to figure out a timeline as well as set the damages for the during stay period. That is assuming that it is found (by the court) DISH ceased infringing. :)

    BTW: I mention document A and you quote document C. Reading A would have been a better response.
     
  19. dgordo

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    jacmyoung

    Someone emailed me to let me know that you have responded to one of my posts. I don't know why. I have not and will not respond to any of your posts. Since I have you on ignore I can't see what you said and I like it that way. So I don't know why you are responding to my posts but know that nothing I have said is in response to you.
     
  20. jacmyoung

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    I hope that someone gets this to you as well, if you have problem with how I post, use PM to James or me, not to question me here.

    Just because you decided to ignore me, does not give you the right to stop me from responding to you. Because your post quoted KSM, something I asked Greg to do which he has yet to do, so it was most certainly on topic to respond to your KSM quote, if nothing else, to address Greg's issue.
     
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