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Discussion in 'General DISH™ Discussion' started by Curtis52, Mar 4, 2010.
Unfortunately, that is exactly right.
I guess the issue can be easily settled by dgordo, when the appeals court overturns a jury verdict, is it to say that the jury's verdict is wrong?
Or if the jury's verdict is not wrong, can it be overturned? I have a feeling the answer might be more complicated than we think
best root password I was ever told in a Fortune 500 company: ojdidit
The job of the fact finder, whether a jury or a judge, is to take the facts presented, determine what is credible and apply the facts you believe to the instructions.
When a jury verdict is overturned on appeal, like here because of improper jury instructions, it is usually assumed that the judge was wrong because he is charged with giving the jury proper instructions.
That is a factual inquiry.
Yes, an appellate court shouldn't consider any issues that were never raised previously. That is what a court of first impression should do.
Unfortunately in this case, the appeals court said, even if...we would still not be able to conclude that any reasonable jury would have reached a verdict as they did. Which has always been why I said the jury simply did not pay attention to the terms "separate", "assemble" and "a", three specific terms in the hardware claims the old DVRs did not meet.
The mistake Judge Folsom made was he told the jury if they found infringement by the equivalents, they could then not decide literal infringement. Seemed to me the appeals court tried to avoid saying that the jury was wrong.
If you read Judge Clark's opinion, he was saying the opposite, he said the de novo review required the appeals court to also look at issues not raised before, which he had some problem with, he then suggested in some rare cases maybe the appeals court should abandon the de vono review rule.
I guess my question is, do you think the finding of infringement as a matter of law, is it done by the appeals court under de novo review or not? I am speaking only the review of the finding of infringement, not how to proceed after the finding is made.
Do my eyes deceive me? Didn't Judge Rader realize that this order was proposed but never signed?
It shows the intent of TiVo and the court at that time. Judge Rader was saying the physical recall was considered, that fact alone demonstrated that TiVo and the court were concerned that E* might have used the software download short cut, they were debating whether they should allow any easy way out for E*. But once it was determined that physical recall was not necessary, it was clear to the infringer that software download alone was considered a sufficient way to avoid infringement. Judge Rader also quoted TiVo as saying so exactly, a quote he repeated to Mr. Waxman twice during the hearing too.
Therefore TiVo's current interpretation cannot result in a conclusion that the only way to avoid infringement is to physically remove those DVRs, because such was considered, debated and abandoned, that was what Judge Rader was saying. But since TiVo's current interpretation indeed renders a software download impossible to avoid infringement, unless of course any DVR fucntions are disabled, infringing or not, therefore TiVo has reframed the intent of the injunction.
That is why Judge Rader never attacked the injunction, rather attacked TiVo's manipulation of the intent of the injunction.
On a second note, I now realize what dgordo tried to say. A de novo review is a fact-finding process. Since those new claims E* raised during the appeal were not raised during the contempt hearing, therefore no facts were available to support those claims, therefore the claims need not be de-novo reviewed.
As Joe correctly pointed out earlier, the design around and court review efforts are very costly, it appears E* has put so much into the design around but only half the effort into defending it. At one time E* said repeatedly they were going to "rigorously" defend their effort, their action did not live up to the claim.
I've read this over and over and I presume that others have too, so for those of us that have absolutley no idea what it says, could you please try this again with other words. I think you were trying to prove why you think that Dish has the option to EITHER disable the DVRs OR ask the court to approve a design-around. Thanks in advance!
I am more than happy to do so, but will do it this time in a different angle so bear with me.
Assume by odds en banc review will fail and the mandate will be issued. Several things will happen. TiVo no doubt will argue for more sanctions for E*'s conduct after 6/2/09. TiVo will also argue that E* must disable the DVRs before any approval of further design around.
E*'s will have several counter arguments. For starter, sanctions are imposed for gross misconducts. After 6/2/09, while the injunction has been stayed, E* followed the "inform" provision religiously, repeatedly informed Judge Folsom of their "further design arounds", with tones of technical documents and legal analyses submitted, on at least two, may be even more new design around plans and beta tests. It would be unreasonable to impose additional sanctions on those facts.
More importantly, Judge Rader has rigorously defended E*'s prior conduct, therefore if Judge Folsom imposes additional sanctions, he will in essence have imposed sanctions against Judge Rader's rigorous support of E*'s conduct.
If TiVo opposes such decision not to impose sanctions, can TiVo appeal? Of course, but remember the appeals panel majority has taken the position already that pretty much everything Judge Folsom does, they would not interfere, they decided they'd rather let Judge Folsom make his call.
The same is true to the additional design around efforts to keep the DVR working. As I explain earlier, the new injunction allows "further design around", as long as E* informs and obtains approval of such further design around.
TiVo will of course likely oppose such plan, argue that E* must first disable the DVRs. But again E*'s counter argument will be that first the new injunction by its letters allows further design around to keep the DVR working, second, again Judge Rader made a compelling argument that TiVo cannot insist that the only way to avoid infringement is to physically remove the DVRs, therefore they must allow the attempt to avoid infringement without physically removing the DVRs. Please keep in mind the majority did not dispute Judge Rader's such argument, they were only saying they do not want to make the decision for Judge Folsom, they will trust Judge Folsom to make the decision.
So it comes down to what Judge Folsom will do. Will he agree with TiVo, make the decision to not allow E* to avoid infringement through a software download at all? Even though his new injunction clearly says it can be done, just that E* needs to inform him and get his approval, and even though Judge Rader said clearly, and the majority does not dispute, that attempts through software download are allowed?
If Judge Folsom in the end does approve the further design around, can TiVo appeal and object to such approval? Of course TiVo can, but as the appeals court majority already said, they had no intention to disturb whatever Judge Folsom may decide.
The bottom line is, Judge Rader's rigorous defense of E*, not only gives E* hope for an en banc review, but more importantly establishes the foundation for continued design around review and approval process to take place, while the DVRs continue to work.
I would submit that the first priority is to win your lawsuit, especially one that you commit tens of millions of dollars to fight and that could put you out of business if you lose. Sorry, but that's just capitalism doing what it does. The fact that Charlie would make that commitment must have been based on his belief that he had the facts on his side.
The reality is that winning or losing goes well beyond the facts - it involves legal strategies, defensive and offensive tactics, etc. For example, Dish not appealing the first injunction turns out to be the single, biggest legal blunder of the case. Look what would have happened - as Rader said, the appeals court would have ruled that the injunction could not disallow design-arounds that were non-infringing and would have ordered Folsom to do it all over again, which would have taken months.:nono2:
Another legal mega-blunder was Dish not arguing to the court that the original injunction was designed for a verdict that included both hardware and software infringement. It's almost inconceivable that Dish could download a design-around for infringing hardware, that's why Folsom said shut off all DVR functions, and then prescribed the hardware changes that constituted it. When the appeals came back and reversed and remanded the hardware verdict (and not, as jac would have you believe, found the hardware to be non-infringing - that option is still out there for TiVo to pursue should they choose to) - Dish had yet another opportunity to go to Folsom to reconsider the injunction and failing that appeal the injunction again.:nono2:
I would conclude that both parties had compelling facts on their sides, both sides were committed to bet the company on the case, but TiVo had a better legal strategy and more competent legal team.
BTW, I'm from Boston and I've never been proud of coming in second place, no matter how close or what the excuse. Around here we say that second place is the first loser:lol: (and second place between two competitors is DFL).
That's not even close to what you said before. This is what you said before:
Now please explain where this injunction "clearly says, you either disable them, or if you wish to get around it (which is what the "design around" means), you must inform and get approval." Thanks again in advance.:lol:
From page 13 of the CAFC Decision pdf:
15 engineers spending 8000 hours? This could mean 15 engineers working full time for 67 days each -- but more likely it means 15 engineers assigning an average of 533 hours over a very long period such as a year, with many of those hours really spent on general administrative tasks and not on any specific billable task.
So, Dish now has "a product inferior to what it previously had?" I'm not a Dish subscriber; could someone weigh in on what that means?
The new software uses statistical analysis to estimate the starting point of the video the user wants to watch during trick play. The previous method used already recorded pointers to the exact locations of trick play events to play back the video.
From page 33 of the CAFC Decision pdf, in the middle of Judge Rader's dissent:
This is, evidently, Judge Rader's own error (or that of one of his law clerks). That, coupled with the bitter and extremist tone of the entire dissent, makes me feel like dismissing the dissent as mere partisan whining.
[See Post #2 for the link to the pdf in question.]
[P.S.] Wikipedia says:
Yeah, that's exactly what the CAFC Decision pdf says. As you know, I read it.
To clarify, what I would like to know is: As users, what evidence do you see of "compromised performance?"
Wrong, this option is closed because when Judge Folsom first proposed his "bench trial" for 02/09 hearing, he ordered both the software and hadware claims analyses for infringement eveluation, but TiVo said no, we would not go there regarding the hardware claims, only the software claims. If TiVo later tries to revisit this issue, E* can easily defeat it.
Now if they actually go to a new jury trial, then yes TiVo may revisit it, but unlikely because the appeals court had made it very clear that the old DVRs did not meet the three claim terms, "separate", "assemble" and "a".
Because the injunction does not say you must first disable the DVR functions, then inform and seek approval, I have already explained it, if you did not read it, that was not my problem.
BTW, I suggest maybe you do not try to speak for other people in the future by the use of word "we", because I do not recall you were ever elected by others to speak on their behalf. If others cannot understand me, or disagree, they are free to post themselves.
You have missed the whole point. E* did not try to design around to make a better product, rather to avoid paying TiVo damages. In doing so they had to come up with a way to get around the TiVo invention, which by itself made for an efficient use of the DVR CPU power.
As a result, the new design is less efficient than the old design, even so, it was still a huge labor intensive work, not just the redesign, recoding, beta testing, but reprogramming the DVRs in the field and trouble shooting all the bugs just like any new software designs do.
I don't understand why you said Judge Rader was wrong to point out E* had 15 engineers working 800 hours, that was a fact even TiVo did not dispute.
There were many reports of issues such as pictures breaking up during DVR trickplays in the newly designed DVRs, especially in those old models with less powerful CPUs, all the evidence that the design around was not just some insignificant trick played by E*.