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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 12, 2010 #641 of 1139
    MCSuckaDJ

    MCSuckaDJ Cool Member

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    Ah. So his vote would only be needed if there's a 4.5/4.5 tie. Gotcha. :)
     
  2. Nov 12, 2010 #642 of 1139
    jacmyoung

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    Well there are judges that may concur in part and dissent in part, can they be considered 0.5 votes?:)

    All jokes aside, only a majority opinion is binding, a tie does not produce a majority opinion.
     
  3. Nov 13, 2010 #643 of 1139
    James Long

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

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    Also remember that there were several questions ... it could turn out to be "win some, lose some" and not all bad for either side.
     
  4. Nov 13, 2010 #644 of 1139
    jacmyoung

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    I have come up with a few possible outcomes, some maybe the "win some, lose some" scenarios.

    1) By at least a majority, the CAFC affirms the district court ruling entirely, TiVo wins.

    2) By at least a majority, the CAFC lifts the injunction and orders a new full trial, E* wins because this is exactly what E* asks. To do so all district court ruling/judgment must be reversed/vacated.

    3) By at least a majority, the CAFC reverses the district court judgment, therefore vacates the damages/sanctions, orders a summary review of whether the modified DVRs are still infringing, instructing the district court to consider the new PTO disclaimers. To do so they may lift, or continue to stay the injunction.

    There are other options too.

    The reason 3) is possible is because TiVo does not dispute the PTO disclaimers, only that TiVo argues they are irrelevant to the contempt proceedings. A summary proceeding is appropriate when there is no dispute of material facts, the only decision for the district court to make is whether such disclaimers are relevant to the infringement issues with regard to the modified DVRs, or not. Decisions on the damages and sanctions, if any, can be made after.

    #3) order would offer a more expedited process in which both parties may claim victory for PR purpose, even though it will still be a decision in E*'s favor.

    I think there can be other outcomes that are anywhere among the above three, but it would be too much of a speculation to do.
     
  5. Nov 13, 2010 #645 of 1139
    Curtis52

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    The hearing MP3 has been fixed.

    CAFC
     
  6. Nov 13, 2010 #646 of 1139
    jacmyoung

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    Not as dramatic as I thought, but we now know that the several cases Mr. Waxman cited where the court required the defendants to seek clarification, those were for repeated offenders, they had been found to be in contempt repeatedly, so after that of course if they still insisted but the orders were not clear, then the court said given your history yes if you still argued the order was not clear, it was your job now to seek clarification after you had been found to violate the orders over and over. Yet TiVo is using those few cases to ask the CAFC to apply them as a general rule. In this case of course E* never even said the order was not clear until TiVo issued a different interpretation in 2008 than in 2006.

    The E*'s rebuttal was interesting, a lot of time was actually spent to "educate" a judge or two (one of them Judge Lourie I think) who seemed still not too sure what the PID filter can or cannot do. I think Mr. Rosenkranz did a better job this time to hammer out the understanding that the PID filter does not analyze start codes, i.e. the so called "audio and video data." He used a very interesting analogy, the broadcast data are like envelops, sealed (data encrypted) with channel addresses on the covers, audio and video and other data inside, the PID filter's function is to only read the addresses, it cannot possibly read/analyze what are inside, only after the PID filter, the envelops are then opened (data descrambled) for the "parser" to read the start codes (the core function of the TiVo technology), but the modified DVRs no longer read the start codes anymore, that much is not in dispute.

    It was clear to me Judges Dyk, Moore, and Rader understood the above explanation about the PID filter, only Judge Lourie (correct me if I am wrong) sought further clarification, which led to the above analogy given by Mr. Rosenkranz. Judge Lourie was one of the two sided with TiVo last time, in which they (Lourie and Mayer) did not even touch on the technical side of the PID filter issue. I think now he was trying to understand it. Likely the other judge's had tried to explain the technical aspect of the PID filter and he needed a clear confirmation from Mr. Rosenkranz, whether he received it or not we don't know, but the confirmation by Mr. Rosenkranz was clear.

    So now they go back and try to reach a majority decision. With Mayer not on the panel, Lourie likely having reservation but talked through by the three on the E* side, there are 5 other judges basically did not seem to have much stonge opinions to even bother to ask any questions, maybe one other female judge (Newman?) did ask a question but I could not figure out who that was. Well still you never know what may happen.
     
  7. Nov 13, 2010 #647 of 1139
    James Long

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    Actually I was thinking of the questions that were asked by the court.
     
  8. Nov 14, 2010 #648 of 1139
    jacmyoung

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    I think after listening to the audio, those questions are just sounding as stupid as they sounded initially. I repeatedly said only the last one had given some clue what might be the mindset of the questioners. But during the oral argument, about the only thing relevant to the Qs was the "fair ground for doubt", the key arguments were all about whether the modifed DVRs were more than colorable different and/or still infringing, as the issue should be from the beginning as I have argued over and over.

    "Infringement is the sin qua non of an violation of an injunction on patent infringement." It is as simply as that.

    In so doing, the PID filter was still the topic of the day. I think in the previous argument Mr. Waxman made a great impression on the majority with his very colorful "I love Lucy" analogy, E* probably played that one back many times, this time they came up with their own version of the envelop analogy, not as colorful but still easy enough to comprehend. Wonder why at the beginning Mr. Rosenkranz kept saying he could not talk more, needed to save time for rebuttal, now we know he made sure he had enough time to get to the punch line.

    If E* wins this time, it might very well be that they had a better punch line this time, just like TiVo had a better one last time. If so then I have to finally agree with Scooper, we collectively as a system are screwed, whether you are on the TiVo's side, or E*'s side.
     
  9. Nov 14, 2010 #649 of 1139
    HiDefGator

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    If the glove doesn't fit, you must acquit!
     
  10. Nov 14, 2010 #650 of 1139
    jacmyoung

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    Charlie was once kicked out of a Vegas Casino not because he showed people a pair of gloves that didn't fit, rather that he was counting the cards:)
     
  11. Nov 14, 2010 #651 of 1139
    James Long

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    Source? Or does the ":)" mean that this slander is just a joke?
     
  12. Nov 15, 2010 #652 of 1139
    jacmyoung

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    I am shocked you did not read this one before.
     
  13. Nov 15, 2010 #653 of 1139
    James Long

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    It is irrelevant to the case at hand (and perhaps more of a compliment than a slander that he had the skill since the only crime is being smarter than the house). A little research shows the source of the claim is apparently a March 2005 Bloomberg story, although a previous account from February 2002 stated it was a Lake Tahoe casino. There he was not asked to leave but was asked to stop playing 21. Since the profit from his efforts worked out to $5 per hour he decided to move on to a much more profitable endeavor. Satellite TV.
     
  14. Nov 15, 2010 #654 of 1139
    rocatman

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    Realize counting cards at Blackjack is not illegal in Nevada. Casinos can ask you to leave but they can't arrest you. In fact there have been several lawsuits against casinos where they have taken a card counter to a back room and roughed him up. In most cases the card counter has received millions either in judgements or settlements.
     
  15. Nov 15, 2010 #655 of 1139
    tivonomo

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    Irrelevant? Hardly.

    Charlie Ergen's gambling days give clear insight into this mindset. Card counting is a way of bending the rules to make financial gain. With maturity, it looks like he has gone from bending casino rules to bending legal rules. And this is not "slander" as at least several patent law blogs as well as TiVo, Folsom, and the original panel are questioning E*'s apparent lack of compliance with the disablement clause of the injunction. And of course there has been a finding of contempt.

    Getting kicked out of a casino is a big deal, but is more a result of arrogance rather than "skill". Getting kicked out of the DVR market by our Federal Courts is a much bigger deal and also more a result of arrogance...
     
  16. Nov 15, 2010 #656 of 1139
    rocatman

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    Card counting is not bending the rules, it is just using your mental skills to put the odds of winning in your favor instead of the casino. There have been several legal cases dealing with card counting and it has been found to be legal at the federal level. Using this card counting analogy is just demonstrating your ignorance about something you think you know about based on what the general public believes is true. Please don't ask me to reference my legal sources, do a little bit of research yourself on court cases involved in Blackjack card counting and maybe you'll learn something.
     
  17. Nov 15, 2010 #657 of 1139
    RasputinAXP

    RasputinAXP Kwisatz Haderach of Cordcuttery

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    I don't usually chime in on this thread, but counting cards at Blackjack without mechanical assistance is quite definitely a skill.
     
  18. Nov 15, 2010 #658 of 1139
    jacmyoung

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    It is safe to say that Charlie's court fights are in keeping with his early card counting tradition, it is in his vein:) And BTW this is not a slander either.
     
  19. Nov 15, 2010 #659 of 1139
    tivonomo

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    Card counting isn't illegal. I've done it myself with some success and I hardly think anyone who's tried would think it is that difficult. Just because one can do it legally, doesn't mean it isn't bending the rules. Cardcounting is very much so against casino rules. That is why you don't want to be obvious or you get caught.
     
  20. Nov 15, 2010 #660 of 1139
    tivonomo

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    Exactly my point. It is a charcter trait. Ergen pushes boundaries. It is what made him a very wealthy man.
     
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