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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 10, 2010 #561 of 1139
    scooper

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    One cannot help but get the feeling that he is for Tivo in that article.

    He didn't even cover that Echostar DID come up with a replacement method (for which they were just granted THEIR patent).
     
  2. Nov 10, 2010 #562 of 1139
    jacmyoung

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    As the former commssioner of the PTO, had he had the power to determine the patent application, he would not have granted E* the new patent because according to him the changes are trivial. Trivial is not innovative.

    Boy was the PTO so wrong to have considered E*'s DVR method non-trivial and granted it a patent. On the other hand, if being trivial is good enough to receive a patent, then what value is there for any patents at all, whether it is E*'s patent, or TiVo's?
     
  3. Nov 10, 2010 #563 of 1139
    CuriousMark

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    Echostar's new patent is innovative, but it is a layer of innovation on top of TiVo's not in place of TiVo's innovation.

    Listening to the audio I got a kick out of the Dish attorney saying that TiVo had said that what Echostar did was not possible. Of course he left out the context that at the time of the invention, it was impossible with the processor technology available at the time. Dish even proved that by not putting this part of their fix into their oldest least powerful DVRs. Anyone who knows the history of this had to be rolling their eyes at him for saying it with a straight face.

    At the time of the invention, Echostar's new technique was impossible, with newer hardware, it makes sense and is a viable new technology that really does work around the "hardware" claims of TiVo's patent successfully. I suppose that is at least partially why TiVo chose not to pursue the hardware claims, they new they could be worked around.

    Since the discussion at the CAFC is about the "software" claims, the Echostar patent, really is just a blustery side show and is not relevant, so leaving it out of the article doesn't seem so much like a one sided omission as it is a proof that the author really does understand the case.
     
  4. Nov 10, 2010 #564 of 1139
    jacmyoung

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    You know it is too bad the stupid CAFC whoever uploaded that sorry audio could not even upload the complete audio. I was hoping to really hear Judge Dyk's response when Mr. Waxman said, the only way E* can avoid the contempt is if E*'s interpretation of the injunction is the only possible one.

    So he is not even disputing anymore that there are more than one possible interpretation, for example one by E* and one by TiVo, just that if there are more than one possible intrepretation, TiVo should win, only if there is one possible interpretation, could E* win.

    Are you kidding me?
     
  5. Nov 10, 2010 #565 of 1139
    tivonomo

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    Waxman was supporting his position that the burden is on E* to ask for clarification if they believed there were other reasonable interpretations. In other words, TiVo should win if TiVo's interpretation of Infringing Products was reasonable - even if one believed E*'s interpretation was also reasonable.

    The line of questioning stemmed from Moore's insistance that both parties could have walked away believing that they had "won" on the wording of the injunction.
     
  6. Nov 10, 2010 #566 of 1139
    peak_reception

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    Or maybe the recording was cut off in the hearing room? Either way, a shame that they couldn't get such an easy task done right. And if it is the uploading I wouldn't hold your breath waiting for them to fix it.

    There can be numerous interpretations of any written words. The question should be, are they reasonable interpretations.

    His point was that unless the District Court's Injunction clearly and unambiguously supports DISH's interpretation, then they needed to ask for clarification or modification (or both) years ago when the Injunction was issued.

    Too bad we don't get to hear the rest for ourselves.
     
  7. Nov 10, 2010 #567 of 1139
    phrelin

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    There are some opinions that seem more "interesting" than others. From this morning's MediaBiz The Morning Bridge:
    While I'm skeptical about all analysts, I can't dismiss out of hand Arbogast's opinion even though she frequently is a talking head on business news shows:
    Naturally, as an attorney:
     
  8. Nov 10, 2010 #568 of 1139
    jacmyoung

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    That is exactly why it was a joke. If E* walked away thinking he understood the injunction the way he sought it was, and TiVo walked away thinking she understood the injunction the way she thought, and if they are both reasonable in their respective understanding (which TiVo now no longer dispute that her way was the only reasonable way), that makes for an ambiguious injunction by definition, and yet Mr. Waxman said in such a case TiVo gets the benefit, totally in contrast to the law.

    BTW, E* thought in fact his interpretation was the only reasonable way at the time the injunction took effect, how can he be required to seek clarification when he thought his was the only way?

    Now TiVo says she has a different interpretation, but she did not tell E* that until the contempt proceeding started in 2008 did she? So how can she insist he clarify it during the 2006-2007 appeal process?
     
  9. Nov 10, 2010 #569 of 1139
    jacmyoung

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    In E*'s mind yes at the time the injunction took effect.

    But since in E*'s mind the answer is yes, does that mean E* does not have to ask for clarification? You see how weird this demand is?
     
  10. Nov 10, 2010 #570 of 1139
    peak_reception

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    These oral arguments are both frustrating and fascinating to hear.

    The lawyers are really on the hot seat, as usual, though Waxman got grilled a lot more closely than Rosenkranz did.

    For all the times they make such appearances I am surprised that Rosenkranz would expect the judges to sit there and listen to him lay out a complicated argument about disablement or colorable difference. He actually tells the first interjecting judge to wait until he's done talking about disablement, then he will address the judge's question. Surprising that he was given that courtesy, and for the most part made his arguments unmolested by other interruptions. And when he was gently interrupted, sometimes it was even to help out his cause, such as when the one judge asked if it was proper to proceed in a contempt proceeding if there is any question of no longer infringing. And then when Rosenkranz is stumbling, suggests to him 'it's not, proper, right?' (the DISH position).

    Waxman, by contrast, was aggressively interrupted many times, including right out of the gate, four or five words into his statement, just like last time with Rader. Lucky for Waxman that he is quicker and more flexible than Rosenkranz, able to parry and thrust as the oral setting requires.

    Still, judges can and do inflict damage through aggressive questioning which does not allow adequate time for response and/or explanation. For some of the judges it seems that the aim is exactly that, to damage rather than clarify. Judges Moore and Dyk came across that way to me this time. Judge Rader came across that way last time, and it did reflect his positioning when the verdict was announced. Of all the talking judges, Gajarsa was about the only one who gave TiVo any comfort at all in his questions, gentle as they were.
     
  11. Nov 10, 2010 #571 of 1139
    jacmyoung

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    First off, we need to learn to throw away the notion that judges don't know better and need educated. It is not true but even if it is, thinking that way gets you in trouble, just look at Judge Rader and what he was able to do.

    Now it is natural if you are a judge and have already had a lot of problem with one party and its positions, you would give that party hard time.
     
  12. Nov 10, 2010 #572 of 1139
    peak_reception

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    "E*'s mind" is not what counts. As I've said before, that is a completely solipsistic approach which is not what courts and judges care about one bit. E* does not get to decide on their own, in their own mind, what an injunction requires. The judge who wrote it knows and decides what it means. Higher up judges can correct the author judge if the question is raised and disputed. E* neither raised nor disputed the Injunction.

    If this does go TiVo's way (which I doubt it will), it won't be because of E*'s clever evasion of the Injunction. In fact, if anything, that will be E*'s undoing if it goes against them. If it goes against TiVo it will be because the CAFC will find that Judge Folsom incorrectly applied the law regarding contempt proceedings where there is outstanding question of more-than-colorable difference to be decided first (by a jury). In which case they will remand the case back to Folsom and the case drags out for another couple of years if the parties won't settle. Of course TiVo can appeal to the Supreme Court also.

    I wonder how many of us will live to see the end of this :sure:
     
  13. Nov 10, 2010 #573 of 1139
    peak_reception

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    I'm not saying that they're stupid. They have a hard job and a heavy work load. They are thrust into case after case where there is usually a long history of complicated dispute. I do, however, believe that they oftentimes go into these oral arguments inadequately (or woefully) unprepared. A tale of the tape. :grin:
     
  14. Nov 10, 2010 #574 of 1139
    tivonomo

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    Lourie was also obviously on TiVo's camp. He "asked" a couple of tough KSM questions of E*. I think Moore and Dyk stand out more because of their attitude and tag-teaming in the questioning of Waxman, but I would strongly disagree based on the audio that this hearing favored either party. It will be a close vote for sure.

    Also, Mayer did not show although he was part of the original panel and sided with TIVo. Just because he didn't show doesn't mean he won't vote (he can if he choses) Additionally, if the Senate confirms O'Malley, that will be another vote. So we could have potentially 11 judges on the final decision.
     
  15. Nov 10, 2010 #575 of 1139
    MCSuckaDJ

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    Perhaps a superior audio recording device is tied up in patent litigation.
     
  16. Nov 10, 2010 #576 of 1139
    tivonomo

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    Yup.

    By definition, if an interpretation is "reasonable" E*'s team should have considered it. I don't think one can argue TiVo's plain reading as unreasonable, so I've said all along that the disablement part of the injunction will stand when this is all over.
     
  17. Nov 10, 2010 #577 of 1139
    peak_reception

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    That may well be true that the aggressiveness of a couple of the judges [Moore & Dyk] makes it sound worse for TiVo than it actually is. But when you can pretty much plant three judges squarely in E*'s corner, one in TiVo's corner, and only guess at the other five, I would say that favor's E* overall. It's hard for me to imagine that the pro-E* passion shown by Rader, Moore, and Dyk will have no effect on the other judges. How many judges have shown pro-TiVo passion? None.

    I would think that only judges who are involved at every step of the process (including oral arguments) would be entitled to vote. Maybe that's wrong. Dgordo?
     
  18. Nov 10, 2010 #578 of 1139
    tivonomo

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    Mayer is allowed to vote since he was on the original panel. Also OMalley, whose nomination is on hold in the Senate, would be allowed to vote if confirmed in the next month or two. There is no requirement that a judge attend the oral argument.

    I think you have to count Lourie and Bryson in TiVo's camp (Bryson wrote the 2008 decision). I think you have to count Rader and Moore in E*'s camp. Possibly Dyk.

    Regarding "passion", I don't think the more experienced judges are "swayed" at all by that. In fact, everyone was laughing at Moore at one point. She was factually off on a couple of obvious points. Probably because of her lack of patent law experience and being the youngest judge ever appointed to the CAFC. Just because she is passionate, the judges only look at the quality of arguments.
     
  19. Nov 10, 2010 #579 of 1139
    peak_reception

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    Which makes for a possible 5 to 5 tie vote? (assuming the other judge is not confirmed in time or is not allowed to vote).

    How would a tie vote be handled?
     
  20. Nov 10, 2010 #580 of 1139
    tivonomo

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    In order to overturn the district court there must be a majority. So 5-5 goes to TiVo.
     
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