Tivo vs. Dish: Petition for rehearing en banc granted

Discussion in 'General DISH™ Discussion' started by dfd, May 14, 2010.

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  1. May 14, 2010 #1 of 1139
    dfd

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  2. May 14, 2010 #2 of 1139
    Lake Lover

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    It is not a surprize, to me, I felt all along that the decision would be reviewed by the full bench. If I were a betting man, I would predict that the decision will be affirmed in favour of TiVo.

    I am very disappointed that Tom and Charlie didn't settle this mess.
     
  3. May 14, 2010 #3 of 1139
    dgordo

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    Surprising to me just because of the low percentage of appeals that get an en banc review. If you look at the questions that they are asking to be briefed, it seems strange that was granted as these are well established legal standards they want answered.
     
  4. May 14, 2010 #4 of 1139
    Allen Noland

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  5. May 14, 2010 #5 of 1139
    Stuart Sweet

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    Here's the next chapter:

    http://www.marketwatch.com/story/dish-network-allowed-to-appeal-ruling-for-tivo-2010-05-14

     
  6. May 14, 2010 #6 of 1139
    dgordo

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    Could that description of the case be any more inaccurate?
     
  7. May 14, 2010 #7 of 1139
    davemayo

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    Here's some of the order:

    IT IS ORDERED THAT:
    (1) The petition of Defendants-Appellants EchoStar Corporation et al. for panel rehearing is denied.

    (2) The petition of Defendants-Appellants EchoStar Corporation, et al. for rehearing en banc is granted.

    (3) The court’s March 4, 2010 opinion is vacated, and the appeal is reinstated.

    (4) The parties are requested to file new briefs addressing the following issues:

    a) Following a finding of infringement by an accused device at trial, under what circumstances is it proper for a district court to determine infringement by a newly accused device through contempt proceedings rather than through new infringement proceedings? What burden of proof is required to establish that a contempt proceeding is proper?

    b) How does “fair ground of doubt as to the wrongfulness of the defendant’s conduct” compare with the “more than colorable differences” or “substantial open issues of infringement” tests in evaluating the newly accused device against the adjudged infringing device? See Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885); KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985).

    c) Where a contempt proceeding is proper, (1) what burden of proof is on the patentee to show that the newly accused device infringes (see KSM, 776 F.2d at 1524) and (2) what weight should be given to the infringer’s efforts to design around the patent and its reasonable and good faith belief of noninfringement by the new device, for a finding of contempt?

    d) Is it proper for a district court to hold an enjoined party in contempt where there is a substantial question as to whether the injunction is ambiguous in scope?

    (5) This appeal will be heard en banc on the basis of the originally filed briefs, additional briefing ordered herein, and oral argument. An original and thirty copies of all originally filed briefs shall be filed within 42 days from the date of filing of this order. An original and thirty copies of new en banc briefs shall be filed, and two copies of each en banc brief shall be served on opposing counsel. The Defendants-Appellants shall file their new en banc brief within 42 days from the date of filing of this order. The response brief of the Plaintiff-Appellee is due within 42 days from the date of service of the Defendants-Appellants’ brief. The reply brief of the Defendants-Appellants, if any, is due within 28 days from the date of service of the response.. Briefs shall adhere to the type-volume limitations set forth in Federal Rule of Appellate Procedure 32 and Federal Circuit Rule 32.

    (6) Briefs of amici curiae will be entertained, and any such amicus briefs may be filed without leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

    (7) Oral argument will be held at a time and date to be announced later.
     
  8. May 14, 2010 #8 of 1139
    davemayo

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    Here's the order.
     
  9. May 14, 2010 #9 of 1139
    davemayo

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    TiVo Statement:

    ALVISO, CA--(Marketwire - 05/14/10) - 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 U.S. Court of Appeals decision to grant an en banc hearing in the lawsuit against EchoStar.

    "We are disappointed that we do not yet have finality in this case despite years of litigation but we remain confident that the Federal Circuit's ruling in our favor will be reaffirmed after all of the judges on the Federal Circuit have had the opportunity to review the merits of this case."

    http://finance.yahoo.com/news/TiVo-Statement-on-Decision-by-iw-3703858270.html?x=0&.v=1
     
  10. May 14, 2010 #10 of 1139
    Kheldar

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    The ruling has some interesting points in it, page 2:
    Part (a) of that section sounds like the court is trying to decide if it is proper to use a contempt proceeding to determine if a "newly accused device" (i.e. a DVR model not included in the original complaint, like maybe the ViPs) is also infringing, or if they must start over with a whole new trial. If they accept the answer that I assume TiVo would give them to this question, this may be a way to get the ViPs shut down with the other models.

    Part (b) suggests that, if they agree in part (a) that the newer models should be included in the contempt proceeding, what kind of test should be applied to determine whether or not the "newly accused device" infringes -- the much-discussed "more than colorable differences", or the “substantial open issues of infringement” test, which is described in a book on patent law this way:
    [​IMG]

    So, if “substantial open issues of infringement” don't exist, according to this book it may be entirely appropriate to bring the "newly accused devices" into the case at this point. At least that's what the court is trying to decide.

    Then, if they determine in part (b) that it is appropriate to bring the newer devices into the contempt proceeding at this point, part (c) is trying to determine what standard they should use to determine what burden of proof TiVo has to demonstrate to prove that the newer devices infringe, and whether or not DishNet should get bonus points for at least trying to avoid infringement.

    Again, I am not a lawyer, but these points seem to mirror some of the debates we have had in earlier threads.
     

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  11. May 14, 2010 #11 of 1139
    spear61

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  12. May 14, 2010 #12 of 1139
    phrelin

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    Wow! A big win for Charlie - delay, delay, delay.
     
  13. May 14, 2010 #13 of 1139
    TulsaOK

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    Earning interest on that money every day.
     
  14. May 14, 2010 #14 of 1139
    phrelin

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    Northern...
    There are a couple of things I don't understand here. They are:

    (4) The parties are requested to file new briefs addressing the following
    issues:
    ...d) Is it proper for a district court to hold an enjoined party in contempt where there is a substantial question as to whether the injunction is ambiguous in scope?​

    AND​

    (6) Briefs of amici curiae will be entertained, and any such amicus briefs may be filed without leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

    Am I reading that the Court thinks it's possible that "there is a substantial question as to whether the injunction is ambiguous in scope?"

    Is it just a normal provision in all en banc rehearings, which aren't normal to begin with, to permit "briefs of amici curiae" or does the court think that there is something special here that perhaps others in lawsuits with TiVo might want to get on the record?
     
  15. May 14, 2010 #15 of 1139
    ATARI

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    and the lawyers on both sides continue to make money
     
  16. May 14, 2010 #16 of 1139
    Voyager6

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    I think that they are referring to Judge Folsom's desire to see the infringing DVR's shut down even if they no longer infringe. E* obviously felt that by loading new software that the DVR's no longer had to be disabled. Judge Folsom disagreed with that. Now the appeals court wants to look at the issue. That was one of the main issues of the contempt citation.
     
  17. May 14, 2010 #17 of 1139
    dgordo

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    Exactly my point. You would think that Dow Jones would know something about the legal process or at least how to read.
     
  18. May 14, 2010 #18 of 1139
    davemayo

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    It is a normal provision in an en banc order to invite amici to submit briefs.
     
  19. May 14, 2010 #19 of 1139
    jacmyoung

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    That is incorrect, the "newly accused devices" refer to the 8 named DVRs with the new software. So far this appeal deals with only those 8 named DVRs, no more, no less.

    For all those questions people say that you do not understand, if you had the opportunities to read all those threads about this case in this forum, they had all been argued here more than enough times, only now the en banc panel is going to revisit almost all of them, all over again.

    Some people in that village definitely got b-slaped today for not believing in karma:)
     
  20. May 14, 2010 #20 of 1139
    dgordo

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    What is the village?
     
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