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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. May 18, 2010 #101 of 1139
    phrelin

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    Hmmm. I read it like this:

    Question to be resolved: Is it proper for a district court to hold an enjoined party in contempt?

    Statement of Court's Belief of Circumstances: where there is a substantial question as to whether the injunction is ambiguous in scope.

    To address the question - is it proper? - does not require determining if the injunction is actually ambiguous.
     
  2. May 18, 2010 #102 of 1139
    Lake Lover

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    Plain and simple, if it is possible for anything revolving around this case to be, doesn't it boil down to the defendants concocted a work around which the judge decided did nothing to end the infringements. The judge applied the injunction in order to end continued injury to the plaintiff by the defendants. So. the only reasonable course of action for the judge was to warn the defendants: You are continuing to infringe; the infringement injures Tivo; I can't allow this to continue, so, clear it thru me from here on. Otherwise, the defendants could go on their merry way continuing business as usual under the guise of diligently pursuing a satisfactory workaround.
     
  3. May 18, 2010 #103 of 1139
    Greg Bimson

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    phrelin,
    That is my point. Someone on the court believes "there is a substantial question as to whether the injunction is ambiguous in scope".

    TiVo will need to take the three-pronged approach that
    1) the injunction is not ambiguous,
    2) even if the slightest ambiguity is present, it is only because DISH/SATS redefined terms within the injunction that have definition, and
    3) injunctions are written to stand on their own merits, so any interpretation of an injunction that requires use of "the court's rules" is not valid when the injunction cannot be challenged.
     
  4. May 18, 2010 #104 of 1139
    jacmyoung

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    Of course if they remand the case, there will be specific instructions, but as far as the amended injunction is concerned, they can only affirm it or vacate it, they will not try to redefine it.
     
  5. May 18, 2010 #105 of 1139
    jacmyoung

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    The above highlighted phrase is an affirmative statement, meaning the en banc panel believed there is a "substantial question" exists to point out that the injunction may be ambiguous. The question is not whether such "substantial question" exists or not, rather what the court should do in light of the existence of such "substantial question".

    The "substantial question" had already been raised by Judge Rader during the oral argument (later stated in his dissent) after he pointed out the inconsistency in TiVo's statements then and now, as far as what E* can or cannot do in order to comply with the injunction. This is a fact, and no one has ever disputed that, not even TiVo. TiVo never disputed Judge Rader's such "substantial question" of inconsistency during the oral argument, Mr. Waxman, faced with Judge Rader's such question, simply changed his topic. Go back and listen to the recording you will agree with me.

    Therefore the question now is, given such "substantial question" raised by Judge Rader about the clarity of the injunction, which Mr. Waxman could not dispute, what is proper for the court to do?

    We need to be very clear about one thing, the injunction was TiVo's injunction, TiVo proposed the wording of it, then instructed the court and E* what steps E* could do to comply with it, and the court adopted it. It is TiVo's job to demonstrate that its proposed injunction is clear, concise and without any ambiguity. It is undisputed, as Judge Rader pointed out in the oral argument, which Mr. Waxman could not dispute, that TiVo said one thing back then what E* could do to comply with its injunction, then after E* did what TiVo said they should do, later TiVo said no, E* should have done something else to comply with the exact same injunction. Therefore unless TiVo can somehow demonstrate to the court that its statements then and now are consistent, otherwise the injunction was ambiguous.
     
  6. May 18, 2010 #106 of 1139
    James Long

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    I suppose we'll know for sure next year some time. Appeals court remands CAN be specific. It is possible that a particular wording will be recommended in the remand.
     
  7. May 18, 2010 #107 of 1139
    jacmyoung

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    I suspect it may come sooner. This en banc order came much sooner than everyone had expected, a lot of investors/analysts were caught by surprise not just because the petition was granted, but the quick turnaround. Most of them were discussing what the decision might do to the TiVo options after the May expiration, then the order came before the May expiration, as some news report said, it was a bloodbath especially for the options contracts.

    What I have done so far is by analyzing the questions raised by the en banc panel, and reading between the lines, something interesting maybe happening here. I suspect because most circuit judges, like the two judges on the merits panel, did not want to confront Judge Folsom on his analyses of the infringement issue with regard to the new design, but at the same time they agreed with Judge Rader's opinions.

    They might have come up with a clever way to possibly blame it all on TiVo:)
     
  8. May 20, 2010 #108 of 1139
    jacmyoung

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    This Dish/Google news should put to the end of any speculation that Google might buy TiVo, or maybe resurrect it?

    I think the timing of this news might also have to do with this TiVo case, it comes out a little over a week after Charlie made his offer to TiVo, and a few days after the en banc order which put TiVo on the defense.

    I can see a possible settlement soon, for the very first time. Not what TiVo had hoped for, but better than nothing.
     
  9. May 25, 2010 #109 of 1139
    jacmyoung

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    Below are some difficult readings of the USPTO regulations/patent law with respect to reexamination and reissue of patent:

    http://www.uspto.gov/web/offices/pac/mpep/documents/2200_2293.htm

    And

    http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_252.htm#usc35s252

    Basically, in an ex parte reexamination, if the patent owner makes any amendment or adds new claims, and later the PTO agrees to incorporate the amendment/new claims for certification, the certified reexamination will be treated as a reissued patent.

    In doing so, if the reissued patent is not substantially identical to the original one, a party is not liable for acts that may have infringed on the original patent, as long as such act was prior to the reissue of the patent.

    If the reissued patent is substantially identical to the previous one, a party may still be liable for acts that may have infringed the original patent prior to the reissue of the patent, however even in such event, the court may still use its own discretion to allow such acts to continue.
     
  10. May 25, 2010 #110 of 1139
    Lake Lover

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  11. May 25, 2010 #111 of 1139
    phrelin

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    It is true that the SEC filing shows $215,404,000 current assets less current liabilities and little debt, which means they have cash to waste. Dish only had $305,111,000 current assets less current liabilities and a lot of debt, so they don't have cash to waste.

    But according to the news release:
    And from the Wall Street Journal:
    So the company has yet to make any money from operations. Do they have anything going for them other than "major possible deals" and the Dish lawsuit (why don't they mention the other lawsuits???). If Dish or Direct had that churn rate increase and subscription losses, the results would be considered disastrous, so I have no idea how to measure what's going on at TiVo.:confused:
     
  12. May 25, 2010 #112 of 1139
    jacmyoung

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    It appears TiVo is losing its own standalone subs at an increasing rate, now only about 1.13M TiVo standalone subs who are actual paying subs.

    There is also a new report that all 11 judges on the en banc panel voted to grant the review. If true it is not very surprising, if you subscribe to my theory that the court tried to pressure Charlie to settle the best they could, now it is time to actually review the application of the law. What that means is, all the court rulings in the past, at least most of them, were just for show:)

    I wonder if any analyst will ask the USPTO reexam question? What would happen if the PTO accepts TiVo's proposed amendment? I don't think TiVo would volunteer an answer if not asked.
     
  13. May 25, 2010 #113 of 1139
    jacmyoung

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    TiVo announced a few new deals today, but all the deals TiVo has made so far failed to excite the investors.

    In the past few days several analysts speculated a buyout by Google, I don't know if they made such speculations after reading my comment a few days earlier regarding the Google TV/Dish deal:) Although anything is possible, I do think some of those analysts are a little desperate. Personally I think there is a better chance Charlie ends up buying TiVo than anyone else. Not that I am betting on it, just what are the odds if it happens.
     
  14. May 25, 2010 #114 of 1139
    Lake Lover

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    I look at the financials and think that Echostar is in terrible shape. Dish needs its cash to run the whole shebang. $311 million is not a lot to run an organization the size of Dish. They have really piled on debt, including borrowing to cover that big one time dividend a while back.

    So, if I were a Dish shareholder, I would say look at this, Charlie: There is no way Dish can make a hostile takeover of TiVo, which would probably run three times the combined cash of Dish and TiVo, which would require borrowing another billion dollars, or issuing 50,000,000 shares of Dish. I doubt any bank would give him another $Billion. This reminds me of the TV ad where a woman is cutting up her furniture with a chain saw, thinking she won the lottery. You might win the new case, Charlie. You MIGHT win. But what if you don't? How much of your cash needed for working capital are you willing to risk in this crap shot??? All of it???

    I might say to Tom: Looka here -- Based on our eroding subscriber base TiVo can't count on a meaningful return from subscription unless TiVo wins this case and begins collecting royalties from other companies. The financials prove that we can increase revenue even without subscribers. But it will be a long time before the profits become meaningful. In the next three or four months fly up and see Charlie and have a heart - to - heart, a give and take, and come to a compromise-- for the sake of all. Half a loaf is better than none.

    Do I think that compromise apart from this case will finally bring this charade to an end? Yes, I do.
     
  15. May 25, 2010 #115 of 1139
    jacmyoung

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    If Charlie could borrow $1B just to pass around among themselves and the investors, you bet he can borrow another $1B if he needs to, even some analyst had pointed out that his credit rating is looking up with this en banc order and a possible win.

    The problem is, while Charlie was willing to deal, that was before the en banc order. I suspect he is no longer so eager to deal with TiVo, because any one of the following ending in his favor will nail TiVo:

    1) The next PTO action against TiVo;
    2) The Judge Folsom's pre-approval decision in favor of Dish;
    3) The en banc ruling in Dish's favor; and
    4) Time.

    While TiVo needs all four of the above in its favor to have a strong position in any kind of talk. That is why there are almost no analysts these days talking about a settlement anymore. Now some still insist some big guy will buy TiVo, just so they can make themselves feel better:)

    But Rogers said today GoogleTV is no good, because it requires a second box. Here is my speculation Google is not buying TiVo:) But I actually do agree with him on the point of the two-box deal, except he forgot, it was not a two-box deal. This GoogleTV deal is different than AppleTV in that Google is trying to make it a "no-box" deal, by building the hardware in the TVs. Additionally where AppleTV fails for not having a full service cable provider as an anchor, Google has learned the lesson and enlisted Dish in the deal.

    Again all the above cannot guarantee success, but at least it will have a better shot at it than AppleTV. On a side note, I think it is critical for Dish to have GoogleTV bulit in, at least in its 922 DVRs.

    According to the Village folks, Rogers also said today that Dish's pre-approval motion had put Judge Folsom in an awkward position. If true, here is Rogers agreeing with me:) There is nothing like having both CEOs agreeing with me:)
     
  16. May 26, 2010 #116 of 1139
    jacmyoung

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    Just read the TiVo call transcript online. I noted when Rogers talked about the pre-approval being awkward for Judge Folsom, he did not mean Dish's pre-approval motion made it awkward, but the en banc order did, which is actually much loser than what I was saying:)

    The difference however is, according to him, it is now awkward for Judge Folsom to do the pre-approval review because the en banc order delayed the clarification of the rules needed for Judge Folsom to do his review. What I said was, the en banc review could render Judge Folsom's decision on the pre-approval moot, which makes the pre-approval review awkward.

    See how two different angles two can take to reach the same conclusion? The problem with Rogers' explanation is, the questions asked in the en banc order will in no way to clarify any rules for Judge Folsom to do his pre-approval review, the order does not address the pre-approval at all, and there had never been any rules established in the past to address a pre-approval anyway, so they would not have been able to clarify the rules for Judge Folsom on the pre-approval, even if they had touched on the pre-approval issue in the en banc order, which they did not.

    What TiVo folks are trying to argue is, because the en banc order does not ask any questions relating to the facts of the case, which we here had all agreed, therefore in TiVo lawyers' view, the en banc panel had already considered the facts of the case in TiVo's favor, it only seeks to clarify the rules, for example, in TiVo's view, the rule should allow an expedited court proceeding (the contempt proceeding) to address the design around issues, not force them to have a new trial.

    Of course the problem with such "tortured interpretation" of the en banc order is, the en banc order itself "unnecessarily prolongs" the court process even much further for TiVo, so how can you possibly argue that the en banc panel is now trying to clarify the rules so to allow TiVo an expedited proceeding (i.e. the contempt proceeding), in doing so, greatly delays the proceeding for TiVo? It simply does not make any sense. For TiVo's interpretation to make sense, the en banc panel should have granted TiVo's motion to immediately lift the stay of the injunction while doing their en banc review, but of course it did not happen, they did not even give TiVo's motion any consideration before denying it.

    For the above reasons, I think our "tortured interpretation" of the en banc order makes much more sense:)
     
  17. May 26, 2010 #117 of 1139
    phrelin

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    Over in another thread discussing Dish June rate changes, I posted this:
    It sure looks to me like Charlie is doing everything to get people out of the listed boxes.;)
     
  18. May 26, 2010 #118 of 1139
    jacmyoung

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    Connecting the dots is what you and I do the best:)

    There is no question he would love to remove as many listed boxes as soon as possible, without breaking his bank. For this reason, I expect E* to soon do the following, or think they should.

    Now that the en banc panel has decided to review the case, E* should soon ask Judge Folsom to get moving on the pre-approval thing, make a decision on the motion ASAP. If Judge Folsom should find the new new design options non-infringing, then stay the implementation of the design around options while the en banc review is pending.

    Doing so will remove the cloud over E*’s head, also demonstrate that both E* and the court are making necessary effort to prevent further infringement. If Judge Folsom still finds the new new design around options infringing, then at least the instructions will be given to E* as what features are still infringing so E* can take necessary steps to remove them.

    Judge Folsom’s stay period will end on 6/4, it will be a good time to ask for the above. If Judge Folsom continues to claim he has no time to do it, at least E* gets on the record that it is trying to prevent further infringement, yet the court is not. Such record will be beneficial to E* later should the en banc panel reaffirm Judge Folsom’s ruling and order, and TiVo tries to seek additional damages and sanctions.
     
  19. May 26, 2010 #119 of 1139
    James Long

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    Hopefully this thread can get back to the case at hand and wild speculation about the case ... I mean, news about the case. (Well at least discussion.)

    The primary reason to get people off of old receivers can be summed up by the simple statement: You can put more MPEG4 channels on a transponder than MPEG2. Making Western Arc all MPEG4 will free up a ton of bandwidth. Enough that more national channels could be added.

    You can disagree with me in the appropriate thread ...

    Now back to Tivo vs DISH.
     
  20. May 26, 2010 #120 of 1139
    jacmyoung

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    There can even be speculation about the differences between MPEG2 streams and MPEG4 streams that could impact this case. I recall long time ago there was a discussion about it. It depends on the technical details of MPEG4 streams, the data packets may be stored differently than those of the MPEG2 streams which may result in changes in how the PID filter operates, for example.

    Of course my experience in compression schemes is skin deep, maybe folks like P Smith can chime in.
     
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