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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. Nov 4, 2010 #481 of 1139
    tivonomo

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    All Folsom said was that the injunction was not complied with. If the injunction exists (is not stayed or overturned), it must be complied with. Since it is stayed, E* can do whatever they please, and nobody has said anything differently except you.
     
  2. Nov 4, 2010 #482 of 1139
    Greg Bimson

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    So let's examine this legal rathole...

    Sure. Go ahead and implement it. Why?

    Because there's still that little issue at the CAFC. If the CAFC changes anything from Folsom's ruling, then EchoStar has the ability to do some things differently.

    If the CAFC reaffirms Judge Folsom's ruling, then...

    Once the injunction is active, EchoStar must disable the DVR functionality on the devices. The workaround then becomes irrelevant, other than to a) determine if it no longer infringes in terms of damages, and b) if it no longer infringes it might be able to be deployed to the enjoined boxes.
     
  3. Nov 4, 2010 #483 of 1139
    CuriousMark

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    It makes sense that given current conditions they could have deployed it if they wanted to. But they haven't. Some possible reasons why not might be:

    • They believe they really do need the Judge's approval
    • They don't trust that the new workaround is "less infringing" enough to be worth the risk
    • The new work around works quite badly and though non-infringing is not something they want to inflict on their customers if they can avoid it

    Surely this list can be expanded, but that is what comes to mind at the moment.

    And don't worry, I am not calling you Shirly. :)
     
  4. Nov 4, 2010 #484 of 1139
    jacmyoung

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    That is where the problem of the logic is, that you do not think disabling the DVR functions require a "work around." In reality, any change requires a software download as a "work around" the TiVo's patent, because the injunction allows the receivers still be used in the field.

    As I said, TiVo did not declare that E*'s new work around still did not disable the DVR functions, TiVo just wanted a full discovery to determine if the court should let E* implement the new work around or not.
     
  5. Nov 4, 2010 #485 of 1139
    jacmyoung

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    1) E* does not believe they need approval, they argued against it at the CAFC.

    2) E* must trust its new work around because E* still trusts its original work around, much less the new one.

    3) That cannot be known already since they have not even tried, they only have the new code for review, not actual products yet. Only after court approval, could E* try to implement the new code.

    But as I have said, it does not matter what I believe, or what E* believes, it is what TiVo believes and what the judge believes. Do what the judge or even TiVo say you shall or shall not do, you can't go wrong even if you do not agree with them.
     
  6. Nov 4, 2010 #486 of 1139
    tivonomo

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    You claim "work around" equals "disabling the DVR functions" even though that is simply following the injunction? Does a judge seriously create workarounds? Bottom line, with the injunction stayed E* can do whatever they want. There is no court order saying otherwise.

    Do you realize that you come across as an antagonist by making such silly arguments to prolong this discussion?
     
  7. Nov 4, 2010 #487 of 1139
    jacmyoung

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    This discussion has been going on for nearly three years, if you are tired of it, you do not have to participate:)

    What I have shown is how stupid this court preapproval thing is, allowing E* to use it against TiVo. Let's suppose the CAFC did not stay the injunction back then, we knew Judge Folsom had no time to do a review back then, and we knew E* would not be able to do anything without his prior approval.

    So the point here is not even whether the injunction is stayed or not, I don't think when Judge Folsom and TiVo came up with this pre-approval thing they prepared for the CAFC to stay it first. I am pretty sure TiVo thought it would be enforced right the way, yet had they ever considered if the court even had time and resources to keep up with the fast changing world of market?

    They have proven E*'s point that this preapproval provision is unreasonable and impractical, they just did not want to admit it.
     
  8. Nov 4, 2010 #488 of 1139
    tivonomo

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    The discussion I am referring to has been only going on for a day... yet it feels like 3 years.

    It is only "stupid" to you and I find it humorous that you have the nerve to call Judge Folsom stupid... I don't see anyone else calling Folsom, E* or TiVo stupid...

    And regardless, you have shown nothing. Thinking objectively, a court monitoring compliance of its own orders is hardly stupid or unreasonable. What happened was Folsom issued an injunction, E* ignored the plain reading of the injunction and did not ask for clarification from Folsom. Instead they asked a hand-picked law firm for clarification. Folsom was well within his rights to require pre-approval.
     
  9. Nov 4, 2010 #489 of 1139
    jacmyoung

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    Sure. He has that right, but if he could not possibly have time to exercise such right (and he must knew that fact by simply looking at his own schedule), then either he is stupid, or he is very smart to have planted a hole for TiVo to fall in.

    You want this? You shall have it, don't blame me if it ends up working against you.

    Pick your poison:)
     
  10. Nov 4, 2010 #490 of 1139
    Greg Bimson

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    Yet it wasn't appealed.
    Uh, the hole to fall is EchoStar. If (yes, I said if) the CAFC upholds Judge Folsom's ruling, no matter what happens, when the injunction is active, EchoStar will need to disable the DVR functionality. There aren't any ifs, ands or buts about that.
     
  11. Nov 4, 2010 #491 of 1139
    jacmyoung

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    Interlocutory decision cannot be appealed. See how much I have learned?:)

    If you really want to talk about what kind of hole each is facing, as James pointed out, a loss at en banc will not impact E* much, yet if TiVo shall lose it will be devastating, don't ask me, ask those analysts.

    No analyst is predicting DISH to drop big if they lose, but they all point out how devastating it would be for TiVo, only that most of them keep predicting TiVo would win.

    The point is, if you want to talk about the size of the hole, it is much much bigger for TiVo than for E*, there is no dispute about that I hope.
     
  12. Nov 4, 2010 #492 of 1139
    harsh

    harsh Beware the Attack Basset

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    By choosing to ignore/omit some of the overriding facts in your analyses.

    It is, as bnborg points out, the very essence of politics.
     
  13. Nov 4, 2010 #493 of 1139
    jacmyoung

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    I like that you said "politics" rather "politicians" because I am tired of people blaming politicians when we the people who voted them in have refused to look at the facts ourselves, our politicians only passed on our messages:)

    But analysts? And judges too? No wonder we are hopeless.
     
  14. Nov 5, 2010 #494 of 1139
    spear61

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    From today's filings; The beta test program for work around and their thoughts concerning the PTO patent review.

    light of the District Court’s finding of contempt, and its description of the manner in which it believes our original alternative technology infringed the ‘389 patent, we are also developing and testing potential new alternative technology in an engineering environment. As part of our development process, we downloaded several of our design-around options to less than 1,000 subscribers for “beta” testing. On March 11, 2010, we requested that the District Court approve the implementation of one of our design-around options on an expedited basis. There can be no assurance that the District Court will approve this request.

    Oral argument on our appeal of the contempt ruling took place on November 2, 2009, before a three-judge panel of the Federal Circuit Court of Appeals. On March 4, 2010, the Federal Circuit affirmed the District Court’s contempt order in a 2-1 decision. On May 14, 2010, our petition for en banc review of that decision by the full Federal Circuit was granted and the opinion of the three-judge panel was vacated. Oral argument is scheduled for November 9, 2010. There can be no assurance that the full Federal Circuit will reverse the decision of the three-judge panel. Tivo has stated that it will seek additional damages for the period from June 2009 to the present.

    On October 6, 2010, the Patent and Trademark Office (the “PTO”) issued an office action confirming the validity of certain of the software claims of United States Patent No. 6,233,389 (the ‘389 patent). However, the PTO only confirmed the validity of the ‘389 patent after Tivo made statements that we believe narrow the scope of its claims. The claims that were confirmed thus should not have the same scope as the claims that we were found to have infringed and which underlie the contempt ruling that we are now appealing. Therefore, we believe that the PTO’s conclusions are relevant to the issues on appeal. The PTO’s conclusions support our position that our original alternative technology does not infringe and that we acted in good faith to design around Tivo’s patent.
     
  15. Nov 5, 2010 #495 of 1139
    jacmyoung

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    I say the above statement in E*'s most current quarterly filing is probably the most confident sounding compared to all the doomsday statements they had made in the past filings. Of course too much confidence often gets people in trouble.
     
  16. Nov 5, 2010 #496 of 1139
    tivonomo

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    Jacmyoung, I see that you are flip-flopping on the importance of analysts... I guess you go with whatever proves the point you are aiming to make? :D

    The truth is that the en banc will impact E* very much so. I don't see how anyone can classify a billion dollars or more as not being an impact. :)

    Of course it will impact TiVo as well and in terms of a percentage of their business it will be a major impact each way. But really the reason both are fighting this out is that it is a serious impact to both businesses and their plans going forward.
     
  17. Nov 5, 2010 #497 of 1139
    Greg Bimson

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    Can we stick to the arguments at the CAFC, please?
    This argument has been presented by no one. Not even Dish Network. It is completely known that disabling DVR functionality is not the same as a workaround.
    Another argument made by no one. The change to the injunction could have been appealed, but it appears the CAFC en banc doesn't care to worry about it. Besides, if we are talking about unreasonable, let's start with "disable DVR functionality". Three of four judges have agreed, and the en banc isn't necessarily taking this up, other than to ask the question if it is unclear. Personally, I think Judge Rader wants to set a standard, which is the only reason he's dissented. After all, he's admitted doing that before.
    TiVo's won all this time, yet it appears the "hail mary" is probable?
     
  18. Nov 5, 2010 #498 of 1139
    tivonomo

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    Judge Rader didn't need to dissent to get an en banc. The en banc request is separate from the panel hearing.
     
  19. Nov 5, 2010 #499 of 1139
    jacmyoung

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    All the arguments you say only made by me, how much do you want to bet they will be made by E* in the future, only if they lose completely on en banc? How so? Just go back many thousands of posts and read my arguments you will find later E* begin to make the same ones:)

    Of course I am not saying I know better than E*, all I was able to do was analyze what E* was doing at a given time, speculate what a strategy that particular action might indicate, then make the argument on that, if your logic is good enough, you will see later the same argument made by the parties.

    I will just point out one mistake you made, the en banc panel never asked IF the injunction was unclear or not, rather they asked, what should we do when the injunction was unclear?

    Which was exactly why TiVo had answered, well if it was unclear, E* still must bear the risk, on the other hand E* was able to go to length to keep reminding the en banc why the injunction was unclear.

    The way the question is framed can lead parties to answer in a certain ways that can potentially neutralize their arguments. In this particular case, TiVo does not get to argue that the injunction was clear, because the question does not give TiVo that opportunity. The question led TiVo to argue that basically an unclear order can still be enforced, an argument even you do not dare to make, and an argument E* seized on and attacked relentlessly.

    E* wouldn't have had such opportunity had the en banc panel not framed the fourth question in such way.
     
  20. Nov 5, 2010 #500 of 1139
    James Long

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    Can we stick with the present? Otherwise we might all post what we saw out the window of our flying Delorean.
     
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