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. Mar 9, 2011 #1101 of 1139
    jacmyoung

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    My above comment was simply to show that notification or not, makes no difference. Who cares what if some of the docs are sealed? We know E* told the court their new designs were in beta testing, they wanted the court to review them for preapproval so they could implement them if the court approved them for implementation. After all the new order said just that, get approval for implementation.

    Now the notification is given, the court has no time to review them. Why do you believe notification during the stay last time would have made any difference? The court would still have no time back then, the stay would lift, TiVo would bring E* to court. Maybe TiVo would not be able to argue hey they did not notify. But then would the damages be less because of that? Would TiVo have asked for $500M instead of $1B? Would the court have assessed $500M damages instead of $200M? None of the damages seemed to be related to anything but the infringement anyway, so what difference would the notification have made?

    Do you agree or not that at a minimum, if TiVo or the court wants to argue that notification would be a good idea back then, that they would at least have tried to show E* notification would actually be a better way to do things? So why after all the argument about notification, simply slam the door on it and say hey I have no time to deal with it after all?
     
  2. Mar 9, 2011 #1102 of 1139
    Greg Bimson

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    That's why I asked (also because I don't know) what the sealed documents are.

    Put it this way: if it isn't a motion, it could be considered a waste of the court's time.
    Because there would have been a motion for clarification of the injunction, something that Judge Folsom would most likely have considered. Complaining that the court has no time while the courts go through their appeals process twice during the past five years while failing to disable as instructed is a bit disingenuous.
     
  3. Mar 9, 2011 #1103 of 1139
    jacmyoung

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    Wouldn't a notification back then also a waste of court's time?

    There were no less than 10 sealed docs submitted, including source codes and non-infringement analyses by a law firm, even though they were sealed the titles said it all. No one said it would be a waste of time, not TiVo nor the court, the court even recognized the need for resolution, only that it had no time to do it.

    In your view what kind of "notification" would not be a waste of time?

    I thought we were discuss notification, not clarification. E* at that time was clear that if they made the DVRs non-infringing, it would be fine because TiVo told them the order would not prevent anything non-infringing. If you are clear, why must you seek clarification?

    I am not complaining that the court has no time, the court says it has no time, I am happy because it helps my argument that notification would have been useless.
     
  4. Greg Bimson

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    A motion, which is by definition NOT a "notification". DISH/SATS would like the court to rule on something. That implies a motion would be required.
    If it is clear that "Infringing Products" must be redefined in order to get some kind of tortured interpretation, maybe you aren't clear.

    The expectation from the formation of the injunction until its issuance was that the "Infringing Products" were to be disabled. Instead, we get this half-baked theory that whatever changes made to software make all receivers non-infringing, yet no court needs to make that determination?

    DISH/SATS argument is that making a formerly infringing DVR non-infringing means the injunction is ambiguous and overbroad because an injunction cannot have a scope that targets a product that is non-infringing.

    However take the case if DISH/SATS actually followed the injunction: a DVR which has its DVR functionality removed for the life of the injunction is now a non-infringing product. DISH/SATS argument that a non-infringing product cannot be subject to an injunction because it is no longer infringing is a collateral attack on the injunction.

    Oh, and there is a ruling that these same receivers are still infringing, which makes the argument moot.

    Yes, the Court of Appeals could strike down parts of the injunction if they feel it is overbroad. But I certainly cannot see where ordering the DVR's found infringing disabled is overbroad. The Court of Appeals certainly didn't have a problem with the injunction during the last appeal; they let the injunction stand and removing their stay caused it to become active.
     
  5. L3G3ND

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    Do u work for dish? or echostar?
     
  6. jacmyoung

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    If you can see the en banc throws out part of the current injunction, do you then not agree the entire current injunction must be thrown out?

    Once a part of the order is gone, the order, as issued by the court, no longer exists as issued. Now the en bank can order the district court to reconsider a new order, but there will no longer be any effective order since 3/10.

    If you also can see that the en banc may order a new trial, you then must also agree it is possible later the court may find those DVRs no longer infringed since 2007? If so damages from 2007 up will also be gone?

    So even if you are correct that E* must be found in violation of the disabling provision, you do not deny that the possibility exists that E* might not have to pay much?

    That is if the en banc throws out the current order, orders a new action and later the district court finds the DVRs non-infringing since 07.

    Now you see why you and I may be in agreement, that is if later the DVRs may be found non-infringing since 07. With the exception that you believe E* still violated the old order but as I pointed out so far the sanctions are mostly based on damages, which are based on infringement, so no infringement from 07 the monetary penalty will be gone.

    The contempt would just be a formality. How do you like that? I am not trying to brush off a violation, only to point out, no infringement, no violation, even if you strongly believe there was violation, it had no substance, if the infringement had stopped after the modification in 07.
     
  7. Greg Bimson

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    It depends, specifcally on what is tossed...

    For example, the infringement regarding the Hardware Claims were reversed and remanded, and the injunction mentions they were found infringing. However, that change did not cause the injunction to be rewritten.

    And I still don't believe the injunction will be reversed and rewritten.
    Well, one dollar of the $2.25 (or four-ninths) of the award is for contempt. I suspect that DISH/SATS would only be assessed four-ninths of the current award. That is still a fairly large chunk of change.

    That's a pretty big IF.

    I suspect that a new trial will not happen. Based upon the injunction, all that is needed is the KSM two-prong test for contempt of the order against infringement.

    If anything, it may be ordered that the infringement analysis will have to be redone, and it can be redone within a contempt proceeding.
     
  8. Greg Bimson

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    With the edit of the preceding post:
    Yes, but the problem is once the injunction under review becomes active and still has the disable clause. DISH/SATS won't be able to "interpret" and will most likely have to disable those DVR's.
     
  9. jacmyoung

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    That is not the point, the point is you agreed part of the current injunction could be thrown out, I just explained if that happens then the entire current order is out. Also the sanction was in the form of "enhanced damages" which can be more than the actual damages up to three times of them. Judge Folsom added one dollar to the $1.25 to make it $2.25. If the damages no longer exist then the enhanced damages no longer stand. No damages, no enhanced damages either.

    Put it this way, you'd better hope that the en banc does not order a new action. If they do, in all practicality E* wins.
     
  10. peak_reception

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    Just over 4 months now since the en-banc oral arguments. My sense is that the longer it takes, the better E*s odds of some kind of remand, relief, or extension, become.

    Complications take more time to hash out. If TiVo were to win on all counts I bet we would have known it by now. Splitting the baby is probably now in progress. Just a guess of course.
     
  11. Greg Bimson

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    But NOT if the disable clause stands.
     
  12. jacmyoung

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    I had tried to explain, whether the disable clause stands or not will have no practical meaning, if the modified DVRs are found non-infringing since 2007, after a new action. Without infringement, there will be no damages, therefore no enhanced damages. Violation of the disabling clause without sanctions will just be a formality, even if it stands.

    In other words, it will be just what I said all along, which had been what the law said all along, no infringement, no violation, even if you believe there was violation.
     
  13. Greg Bimson

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    Don't you think that is a big "IF"?

    What you are basically saying with this sentence is that the CAFC will find the modified DVR's non-infringing (which is far from a slam dunk). More likely would be a reversal of the infringment analysis, which means even if a new action is required, the disable clause would still stand.
    Only if the CAFC rules that there is no infringement, and like I said, that is a fairly large task.
     
  14. jacmyoung

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    Let me try an easy way, which was the point made from the very beginning, no infringement, no punishment, even if the court finds violation. A finding of violation without punishment is a hollow finding. There is no means under the current patent law to punish anyone if infringement is not there.

    This is not about some "big if" rather a bottom line statement. Again I have never disputed, nor has E*, that if the DVRs continued to infringe, they would be in the wrong.

    The CAFC is not tasked to do infringement analysis, though they can overturn the lower court's conclusion, then remand the issue for further proceeding. There were times when the issues were so clear that after the remand the lower courts simply resolved the issues in summary proceedings or the parties simply dropped the issues.
     
  15. Greg Bimson

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    You are missing the point. It goes to both the original finding of contempt by Judge Folsom and again by the CAFC in their 2-1 decision. Both courts have stated that failure to follow the disable order is a contemptable offense. If upheld, that means there is ample law to punish if contempt of an order is found. It gets quite simple if the CAFC upholds Judge Folsom's finding of contempt on the disable clause.
    DISH/SATS has asked the CAFC to review whether PID filtering meets the step of the claim. If the CAFC says that PID filtering does not meet that step of the claim, the CAFC will have in essence provided their own infringement analysis. Contrary to that point, if the CAFC says that PID filtering does meet that step limitation, it is still quite possible the CAFC could find an error with the infringement analysis and order Judge Folsom to perform another infringement analysis (reverse and remand).

    All of these issues do not need to be linked together. Taken in combination, there are plenty of outcomes.
     
  16. jacmyoung

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    Without infringement, there is no practical means to punish a party for violation in a patent case, if you disagree maybe you can show us an example, since you believe there are plenty of ways?

    The only meaningful sanction in a patent case against violation is enhanced damages, which requires damages, which requires infringement.

    Of course the reason this is the case is because the court has always held that in a patent case, if there is no infringement, there is no violation, as such there was never another form of punishment established.

    I am no lawyer, I am more than happy if someone can show us other examples of sanctions, attorney fees and costs notwithstanding as I had explained before.
     
  17. Greg Bimson

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    There are plenty of ways to punish contempt. This is no longer "a patent case". It is a contempt case. As currently ruled, failure to disable is punishable by contempt, and sanctions can take many forms.

    Or perhaps you need to show us a case where "there is no practical means to punish a party for violation".

    Where I will agree is that if the sanction isn't stiff enough, DISH/SATS will simply ignore the court's order to disable.
     
  18. jacmyoung

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    In a patent case, please don't take things out of context.

    This is the first time I heard anyone saying this case is no longer just a patent case.

    Even when you look at the sanction imposed by Judge Folsom, it was based on damages. Personally I have not read a single patent case where sanctions were based on those other than damages, which were based on infringement.

    If you can't show me an example, that is fine, but don't tell me this is no longer a patent case unless you really know what you are talking about.
     
  19. Greg Bimson

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    The patent case was decided almost five years ago. This is completely about contempt.
     
  20. jacmyoung

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    It is still a patent case. If it is just a civil contempt case, the state court or the fifth circuit, rather the cafc would be reviewing it.
     
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