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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. Jul 13, 2010 #201 of 1139
    phrelin

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    Northern...
    It's just my worthless observation, but Charlie doesn't seem to get lawsuits going with different folks over essentially the same issue. TiVo seems to be getting in deeper and deeper taking on industry giants that seem to cleverly bring up the Echostar/Dish case which has yet to be resolved.

    There's got to be a subtle negative psychological impact on judges, even Folsom, that results in a raised eyebrow or two directed towards TiVo's table.
     
  2. Jul 13, 2010 #202 of 1139
    Curtis52

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    Considering how long lawsuits take, filing lawsuits serially might not be a good business strategy. Dish infringed. That much is settled. Others may too and I don't think whether they are industry giants or not is germane.
     
  3. Jul 13, 2010 #203 of 1139
    jacmyoung

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    I think TiVo recognizes this, which is why they no longer talk much about the lawsuit wins, rather their new partnership with various cable operators. Unfortunately the TiVo investment community is already addicted to the lawsuit wins.

    I expect Verizon to pick up the PTO reexamination issue as well. Last time they filed their papers on the motion to move forum, the PTO decision was barely issued.
     
  4. Jul 13, 2010 #204 of 1139
    jacmyoung

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    I don't know if Judge Folsom is moved at all. We will know soon after he makes the rulings on both motions to transfer.
     
  5. Jul 14, 2010 #205 of 1139
    jacmyoung

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    I quoted the above two previous posts I made, because today TiVo filed for extension to the PTO to move the response deadline from 8/4 to the second week of September, as expected.

    One of TiVo's justifications was the invalidity contentions raised by ATT/MS in the TiVo v. ATT/MS case, and the high volume of prior art documents TiVo needed to go through, although I don't know why ATT/MS invalidity contentions should have anything to do with this reexamination. But it will be very interesting if TiVo will actually touch on any of the prior art references used by ATT/MS and use them in this reexamination, especially if the Dishplayer 7100 and the related MS patent are discussed.

    TiVo's request also confirmed my speculation about the likely TiVo strategy, that is try to convince the Examiner to reverse his Final Rejection, failing that, appeal rather amend the claims for a speedy recertification. Amend the claims will likely seriously undermine this lawsuit against E*.
     
  6. Jul 28, 2010 #206 of 1139
    HiDefGator

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    where is the Dish brief ? shouldn't it be available by now.
     
  7. Aug 3, 2010 #207 of 1139
    jacmyoung

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    Well E* filed its initial brief on 7/26, but there are more.

    Greatbatch filed its amicus curiae brief in support of E*, and Verizon file its own in support of neither party. Whether these two amicus curiae briefs were actually rejected or not is difficult to tell last I checked.

    The most recent amicus curiae brief file by the FTC on the other hand is more easily accessible:

    http://www.ftc.gov/os/2010/08/100802tivoechostarbrief.pdf

    First it interpreted the four questions raised by the en banc order the same way I interpreted, specifically the last one, though the FTC decided only to address the first three questions.

    Even though the FTC brief says it supports neither party, after reading it, I had the feeling it is almost in support of E*.
     
  8. Aug 3, 2010 #208 of 1139
    HiDefGator

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    well if someone has to go to DC to get the briefs might as well wait till next week and get Tivo's at the same time.
     
  9. Aug 3, 2010 #209 of 1139
    jacmyoung

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    Why? No one here is even interested in this case anymore.

    As to the others, Judge Folsom has not been able to find time to stop E* from continuing the supposed infringement, E* has stopped from asking Judge Folsom to do that, TiVo has been busy signing deals with small cablecos, putting deals with the big guys behind them.

    The parties in this litigation are acting as if whatever the past decisions will have no impact to their current and future businesses.
     
  10. Aug 3, 2010 #210 of 1139
    HiDefGator

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    Entertaining summer reading?
     
  11. Aug 4, 2010 #211 of 1139
    jacmyoung

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    I don't see anything entertaining in those briefs except maybe one. As the FTC pointed out, "The fourth question concerns the propriety of holding a party in contempt when there is ambiguity as to the scope of the injunction."

    As I pointed out before, one of the TiVo's core arguments has been that there was absolutely no ambiguity as to the scope of the injunction. It will be very interesting to see how TiVo can address the fourth question without basically telling the en banc panel that they are stupid.

    I am not trying to be sarcastic, really, this is where (regardless the outcome) you can separate a great lawyer from an average one.
     
  12. Aug 4, 2010 #212 of 1139
    phrelin

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    I beg your pardon! I'm someone here!:D
     
  13. Aug 5, 2010 #213 of 1139
    jacmyoung

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    You and I are nobody, remember?:)

    Here is another piece:

    http://www.multichannel.com/article/455633-FTC_Weighs_In_On_TiVo_EchoStar_Case.php

    The Verizon's brief sounded a lot like something we talked about:)
     
  14. Aug 10, 2010 #214 of 1139
    jacmyoung

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    The recent deals TiVo made with some of the small cable companies seem to indicate TiVo is now willing to offer very reasonable terms. The deal with RCN is a good example. According to some posters here in the DirecTV forum, RCN is only charging an extra $2 for a TiVo DVR, compared to the ordinary cable DVR box RCN provides. The new RCN TiVo DVR seems to provide the most up-to-date features even the new DISH and DirecTV DVRs have not caught up with. More importantly TiVo is providing both software and hardware support in the above deals.

    Such deals appear in much better terms than the DirecTV and Comcast deals, not to mention what TiVo is seeking in the DISH deal through the courts in the past. In other words TiVo has adopted a more reasonable approach since the appeals court en banc order.

    While Charlie has stated that he would settle with TiVo for $120M per year, that was before the en banc order. It is reasonable to speculate that currently TiVo would be happy to accept such terms because it is in line with what the RCN deal is. Keep in mind even if TiVo wants the court to dictate a settlement in the form of a compulsory licensing deal, the deal would still take into consideration the existing deals TiVo has out there, including the latest ones with the small cable companies. Add to the fact that TiVo must have realized the PTO’s rejection of the software claims has put TiVo in a less favorable position in a hypothetical settlement negotiation.

    It is therefore reasonable to speculate that after the en banc order and the PTO Final Action, Charlie might have taken back the offer he made to TiVo. While it is understandable that he has the right to clear his name, to remove the cloud over him as far as the issue of infringement and contempt, at this juncture, a reasonable deal to allow E* and TiVo to “work together” is clearly in the interest of E*, and more importantly in the interest of the DISH subs.

    Despite E*’s claim that they had downloaded an “improved” software to avoid infringement, we know it is less efficient than the TiVo’s DVR technology. To avoid infringement, they had to remove some key features that were intended to save the CPU power consumption. We know that the DISH DVRs do consume more power than the other brands. It is also clear that the higher DISH DVR fees are in part the result of the E* v. TiVo lawsuit, so much that they appear to be one of the main reasons DISH is now less competitive than DirecTV in retaining advanced DVR subs.

    All of the above makes a reasonable deal with TiVo a compelling move. From the very beginning I had wished they worked together, while I am not holding my breath, I hope they do so for their subs, by putting their own egos aside.
     
  15. Aug 10, 2010 #215 of 1139
    domingos35

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    well said
     
  16. Aug 13, 2010 #216 of 1139
    jacmyoung

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    Just when I said TiVo was moving away from the past software/UI-only deals with the large DVR/content providers, as evident from the latest deals with the small cablecos, TiVo just made a deal with Cox cable, again focusing on using TiVo's own hardware.

    The timing is interesting because not too long ago (before the en ban order) TiVo indicated they wanted to move away from being a DVR company, rather becoming a software provider (hint: IP licensing), but recently (after the en ban order) everything TiVo has been doing is going back to be a DVR company. Maybe they also see their winning streak on the IP front ending.

    Yet those latest deals, while not the best ways to make TiVo investors rich overnight, will likely benefit the consumers by offering an advanced DVR alternative to the cable subs, ultimately provide real competition in the DVR market.

    Maybe the CAFC does know how to use the patent system to benefit the consumers, which is the goal of our patent system anyway. To that end let's hope TiVo success, if only there is a way to use a TiVo DVR to receive satellite programming as well:)
     
  17. Aug 18, 2010 #217 of 1139
    Lake Lover

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  18. Aug 28, 2010 #218 of 1139
    jacmyoung

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    On or around 8/25 TiVo had an interview with the PTO Examiner(s), we should know how that went very soon.

    While searching the PTO PAIR site, I also took a look at the docs concerning that "Digital Video Recording System" patent app. If you all recall a few months back I talked about that app TiVo filed in 2004, as a "continuation" of the "Time Warping" patent in this TiVo v. E* case.

    That "DVR" patent had been rejected many times (non finals) by the PTO, on or around 8/5, TiVo finally amended many claims in the app in order to overcome the rejections. The amendment seems to make the claims "no longer substantially identical":) meaning even if the PTO accepts them and certifies the "DVR" patent, there may not be liability due to any infringement acts (even if TiVo may prove such acts) prior to the certification of the patent.

    TiVo's such move, along with its proposed amendment in the "Time Warping" patent reexamination (which the PTO Examiner ignored in his Final Rejection) seem to suggest TiVo rather choose not to fight the PTO Examiners all the way through appeals. Although the stakes in the "Time Warping" patent reexamination are much higher, if TiVo makes a similar amendment again, E* can go free.

    Therefore the outcome of that 8/25 interview could be very critical.
     
  19. Aug 30, 2010 #219 of 1139
    jacmyoung

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  20. Aug 30, 2010 #220 of 1139
    jacmyoung

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    Today the PTO site provided the TiVo interview summary detail. The interview with the PTO Examiners did not yield an agreement. TiVo agreed to provide a "supplemental amendment" to the Examiners soon. There are a few hints on what the Examiners were asking for, but not enough to indicate whether TiVo will have to actually amend the claim terms, or merely provide additional clarification in the patent specification.

    The issue centered on the "automatic flow control", which according to TiVo is different than the two prior patents. My feeling is, further clarification of such "flow control" can land support to E*'s contention that E*'s modified software no longer used the kind of flow control specified in TiVo's claims. TiVo is now required to clarify that the "automatic flow control" is a function runs in parallel to the three (source, sink and transform) objects. The "flow control" TiVo accused E* still uses in the modified software, as I recall, was just a "ring of buffer" used in writing data onto the hard drive. It does not work in parallel with those objects.

    I am sure E* is watching closely at what TiVo and the Examiners will say about such flow control function.
     
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