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TiVo vs. Echostar Court Case: Post Hearing Discussion

Discussion in 'Legislative and Regulatory Issues' started by Tom Robertson, Feb 17, 2009.

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  1. jacmyoung

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    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.
     
  2. Greg Bimson

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    Of course. However, that implies that DISH/SATS assertions are true to the definitions given by the court.

    Instead, DISH/SATS assertions are a change in the definitions as supplied by the court, such as:

    1) we followed the injunction when we disabled the DVR for a moment, yet the injunction was not in effect at the time
    2) when the injunction went into effect, the products we downloaded new software to are no longer "Infringing Products", as if something we do would change the definition
    3) FIVE experts said the PID filter is the "physical data source" which did the parsing, but the guy we paid that was one of those five has changed his story, only because the jury found us guilty
    4) we only have a single buffer method now, but in actuality it is ten buffers in a circle so that data loss isn't as probable

    Borderline ridiculous. That is the definition I've come up with.
    There is a counter argument. The definitions of the court have not changed.
     
  3. Curtis52

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    I guess it just never occurred to Dish to appeal on patent invalidity grounds back when all of their experts said that the PID filter was the parser in the software claims. That makes more sense than that a nonlawyer knows more about what's valid. They just never thought about it.
     
  4. jacmyoung

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    I am going to summarize what I believe what E*'s current argument is.

    E* is now saying, the new design no longer "indexing" and no longer do the "start codes." And because TiVo said during the appeal that "indexing" was relevant to the hardware claims, even though the word "indexing" did not appear in the hardware claims. And TiVo defined "indexing" as "logical separation." More importantly the appeals court agreed "indexing, i.e. logical separation" was relevant to the invention.

    Therefore what E* is saying is, the first step of the software claims essentially says:

    [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, logically separates start codes from said broadcast data, and temporarily stores said start codes;

    Since the new design no longer "logically separates" and no longer do "start codes", the differences are more than colorable.

    TiVo on the other hand literrally has not responded to such argument, if one agrees that the court will not buy the notion that "indexing" is irrellevant because "indexing" does not appear in the software claims.

    Now of course TiVo spent a lot of time trying to point out what E* had said in 2005, or how the claim constructions had not changed.

    Ture, but E* says their opinion has changed, because their design has changed, and no, the claim constructions never changed, just that because of the changes in the design, the new design no longer meet some of the claim constructions.
     
  5. Curtis52

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    Yep, and TiVo said it within the first few minutes.

    CHU: YOUR HONOR INTERPRETED THAT CLAIM TERM PARSING AFTER HARD FOUGHT CLAIM CONSTRUCTION TO MEAN ANALYZE. THAT CLAIM CONSTRUCTION WAS NOT APPEALED TO THE FEDERAL CIRCUIT. IF THEY
    DISAGREED, THAT WAS THE POINT IN TIME WHERE THEY COULD HAVE SAID TO THE FEDERAL CIRCUIT, PARSING REALLY MEANS INDEXING. THEY DIDN’T DO THAT. AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT’S NOT A CLAIM TERM, AND IT’S IRRELEVANT.
     
  6. jacmyoung

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    It never occurred to E* to ask the USPTO to combine the two prior art when they were doing the last re-examination, as a result the TiVo claims were unheld by the USPTO last time.

    Now E* realized that, and made this new request, and the USPTO agreed with E* that now with this new argument, there are substantial new evidence questioning the validity of the TiVo software claims.

    To respond to your other comment, I'd like to use a quote I made some time ago, which I think is very appopriate:

     
  7. jacmyoung

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    And that is where TiVo's argument will be dismissed, because TiVo used the exact same term during the appeal, and the appeals court considered it relevant.
     
  8. Curtis52

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    The media switch does the start code detection. The media switch is in the hardware claims. It is not in the software claims.
    The PID filter analyzes the broadcast data from the satellite, selects the desired program audio and video data and stores it temporarily in a buffer.
     
  9. jacmyoung

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    Where does E* even mention the term "media switch" now? The word used is "indexing." This word does not appear in any of the four patent claims, yet TiVo argued it was relevant to two of the claims, and the appeals court agreed, now E* is saying it is also relevant to the other two claims. What is TiVo's response? No, it is irrelevant to the other two claims because the word does not appear in them? Short memory you think?

    As long as such "program audio and video data" is not the "start codes", the PID filter is not that "physical data source." This is what E* says, and TiVo has no counter argument against that.
     
  10. Curtis52

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    Appeals court:
    Indexing happens after the data is stored in a buffer. The parsing in the software claims happens before the data is stored in a buffer. It seems like I post this every day.
     
  11. Greg Bimson

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    If this is DISH/SATS argument, they lose. The court's definition:
    Therefore, the court defines “parses video and audio data from said broadcast data” as “analyzes video and audio data from the broadcast data.” ​
    There is nothing about "start codes" in that definition.

    The PID filter takes the transport stream ("the broadcast data") containing a dozen or so channels and analyzes the data to only store the selected channel (which is "the audio and video data") to a file.
    But DISH/SATS actually isn't saying that. They've been stating they no longer index pre-storage. Which means they still index.

    Indexing pre-storage is an element in the Hardware Claims. Indexing is not required by the Software Claims.
     
  12. Greg Bimson

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    I'll give the real reason for this...

    Last year SCOTUS ruled that the combination of two existing patents cannot be considered a patentable idea. There must be an element which contains no prior art.

    The review by USPTO appears to me that DISH/SATS is arguing the Software Claims are simply two patents combined into one. That test could not have been evaluated until SCOTUS made that change.
     
  13. Curtis52

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    If Dish wanted "analyzes" to mean "start code detection". They should have argued for that at the Markman hearing and appealed the claim construction to the appeals court. They didn't do either one of those things. At the Markman hearing they argued that "analyzes" meant "separates". Their argument lost and they didn't appeal that or ever argue or appeal that "analyzes" means "start code detection". Meanwhile, PID filtering is still analyzing.
     
  14. Curtis52

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    Actually, the hardware claims do not specify whether the indexing occurs before storage or after storage. The order isn't specified.
     
  15. jacmyoung

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    So what, you mean there is no buffer before that? Do you realize the PID filter has it own buffer? In fact all things computer related pretty much work around buffers, buffers are where things happen.

    The PID filter has its own buffer, when the broadcast data goes to the PID filter, it gets stored on the PID buffer while the PID analyzes it, throws out the bad bits, retains the good bits, now the good video and audio bits are in the buffers provided by the PID filter and gets pushed out for further processing.

    As I said, you can say all you want about the software claims happens before the buffer, as long as TiVo does not say it, or the court did not say it, it does not count.

    What you have continued to quote was the hardware claims discussions, not the software claims discussions. Parties never discussed such issue in the context of the software claims before. Now E* has raised this new issue, a dispute of facts. What TiVo must do is to prove with clear and convincing evidence that such dispute simply does not exist to be tried in a new trial.

    TiVo does not even attempt to do that, the only thing TiVo is doing is basically calling E* a liar. Well fine, we'll see how it goes.
     
  16. jacmyoung

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    Good, then don't try to specify it for TiVo. If E* specifies it this way, TiVo may disagree, but TiVo wasn't disputing the order E* is specifying, only that E* may not even specify such because it is irrelevant, and as I said good luck with that.
     
  17. Curtis52

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    The PID filter is in the input section where the broadcast signal is analyzed.. Start code detection is done in the media switch which according to figure 1 is downstream of the input section. The media switch is in the hardware claims. It is not in the software claims.
     
  18. scooper

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    So - since the HARDWARE claims have been remanded - Echostar COULD be using a Media Switch and (currently) NOT BE INFRINGING . Is that what you're saying ?

    If you answer no - you're saying that the indexing is a software function and is therefore relevant to the current SOFTWARE discussion. Otherwise - I don't see where you're going with this idea that indexing is a Hardware function. It may be getting done by specialized silicon, but it is still basically a software function.

    Heck, to destroy your arguement that the PID filter is an important piece of the DVR - all you have to do is bring a non DVR Echostar receiver in as evidence and show that it too has a PID filter. What have you got to answer that one ?
     
  19. Curtis52

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    The reason the appeals court said that Dish infringed was because they infringed the software claims. If even one claim is infringed, infringement can be found.
     
  20. Curtis52

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    A DVR won't work without a signal. A patent is required to give enough information to allow someone to build one without undue experimentation. Requiring analysis is actually detrimental to TiVo. Not requiring analysis would be a broader patent.
     
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