The problem is TiVo can only argue what E* had admitted in 2005, TiVo cannot face what E* is saying now. E* has changed its opinion, and told the court the reasons for the change of the opinion. TiVo must face such new opinion right on, to dispute E*'s reasons for such change. But TiVo did not, all TiVo can do is to say the reasons are "irrelevant", but I have already showed the court will most likely consider those reasons relevant, because the court had done so before. Therefore in effect, E* made an assertion, TiVo had no counter to such assertion. The court must either agree with E*'s assertion, or with TiVo's counter argument. If TiVo did not offer any counter argument, the court of course will have to take E*'s assertion as is. The court will not help TiVo to create counter argument.