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. Apr 6, 2009 #1361 of 1468
    jacmyoung

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    True but why some of you have been totally silent on the colorable difference issue since I have explained why now a more than colorable difference ruling is more likely, given the DE opinion?:)

    The only person making argument on merely colorable difference now is nobody99 (redacted)
     
  2. Apr 6, 2009 #1362 of 1468
    jacmyoung

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    I already said it does not have to be DVR functionalites patent, any patent E* may threaten to go after TiVo will do. But I will not tell you what is E*'s patent portifolio since our discussion is about how this new action may benefit who.

    You seem to believe as long as your ask me for something and I failed to answer, I lose, well I asked you who knows how many times such question: "are your still so sure...?" everytime you made an incorrect assertion, you never answered my such question, so please...

    This is exactly why there is no point of answering your questions sometimes, I don't know how in the world you could have possibly concluded I admitted that.

    That is not TiVo's opinion, it is ok to present your opinion, but I hope your opinion is at least similar to TiVo's if you wish to help TiVo.

    TiVo did not believe transfer was better than dismissal, because had TiVo thought so, TiVo would have asked for a transfer, rather asked for a dismissal.

    So let me ask you again, are you still so sure TiVo thinks tranferring to TX was better than dismissal?


    Please show me where did it say this case is already moved to Texas?
     
  3. Apr 6, 2009 #1363 of 1468
    dgordo

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    I'm glad to see you say that is true, because you had been saying something different before. As for the rest, probably because we understand that the DE opinion has no bearing on what Judge Folsom will decide.
     
  4. Apr 6, 2009 #1364 of 1468
    nobody99

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    Until a colorable difference determination is made for a future contempt hearing on non-adjudicated dvrs, a declarative judgment cannot proceed. And only Judge Folsom can make that determination. As I have said, now that the case is moving back to Texas, it doesn't matter anymore because if Judge Folsom finds more than colorable, there would be a new trial regardless. But DISH lost in its effort to move the new trial to Delaware.

    I am confused, what "DE Opinion?" The only opinion they have made is "we can't determine this, only Judge Folsom can." Which is a victory for TiVo since the case is back in Texas.
     
  5. Apr 6, 2009 #1365 of 1468
    nobody99

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    here's what you said

    Surely you can see there is a big difference between "E* threaten to go after TiVo" and Judge Folsom requiring TiVo to be noninfringing.

    This contention is rather unusual, and, in all honesty, seems like it's made up. I have never heard of a requirement that a judge declare non-infringement of a different patent. Clearly, though, you had a particular patent in mind.

    But again (for a fifth time) I will ask specifically for a patent number that shows that DISH has a DVR patent. I think most readers will find it quite curious that the information still has not been provided.

    Furthermore, it would be helpful if we could see a specific example where a counterclaim requires a judge to declare noninfringement of a different patent.
     
  6. Apr 6, 2009 #1366 of 1468
    scooper

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    No - all it means is that the DE case can't proceed until Judge Folsom in TX makes his "colorable difference ruling" - it would be "pending" if anything. It certainly hasn't been transfered yet.

    Echostar is playing this for the long view - I'd suggest an adjustment in your scope should be considered.
     
  7. Apr 6, 2009 #1367 of 1468
    jacmyoung

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    Here is why I said when one reads a statement, one must put it in the context, not just read it in total isolation.

    When the DE judge said he could not make a concrete decision, one must continue to read as the reasons why he said so.

    He looked at E*’s evidence and told TiVo, no, based on the E*’s evidence, I could not agree with you that the difference was merely colorable. But then why did he say he could not make a concrete decision anyway? Because TiVo did not get the chance to have a full discovery, and in fact, TiVo said E* had refused to provide the info needed.

    And that was the reason the DE judge said he could not make a concrete decision. Because you know why? E* could have been lying to him, TiVo did not have a chance to verify such E* evidence.

    Therefore one can say, had TiVo had the full discovery at that time, the DE judge would have been able to make a concrete decision.

    Now TiVo did have that full discovery and E* had given all TiVo had asked for. So in such case one needs to ask, had that happened at that time, what might be that “concrete decision” be from the DE judge?

    It is a hypothetical question of course, but an answer to such hypothetical question can give some idea what the Judge Folsom’s “concrete decision” might look like.

    If you read to this point and still cannot see my point, I give up.
     
  8. Apr 6, 2009 #1368 of 1468
    nobody99

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    Why? He can't make the decision because he does not know anything about the case. One need not read anything further into it. I suppose if DISH wanted to appeal the decision it could read further into it, but it does not matter.

    One need not read anything into this. When a court issues such strongly-worded, clear communication, the losing side should take it to mean that the Judge felt that the case was filed improperly by the mover. It is rare for a case to be transferred, and DISH's legal team should take this defa

    That is your choice. I will be here if you change your mind.
     
  9. Apr 6, 2009 #1369 of 1468
    nobody99

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    You might want to read up on the case some more. Delaware is transferring the entire case to Texas. They are not simply waiting for Judge Folsom to decide colorable differences.

    Here's a link to the decision text

    http://www.southernme.com/DAVY_v_GOLIATH/Tivo v Echostar/DEFarnumOpinion.pdf
     
  10. Apr 6, 2009 #1370 of 1468
    jacmyoung

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    Yes he could and he did make a decision, based on E*'s evidence, he is no dummy, he can read and make up his mind.

    TiVo argued before him that the difference was merely colorable, and the DE judge, after reading E*'s evidence, told TiVo, no, I could not agree with you the difference was merely colorable.

    Yes, he made a decision to disagree with TiVo's assertion that the difference was only colorable.

    But it is also true he did not make a concrete decision that the difference was more than colorable, but that was because TiVo did not have a chance to verify E*'s evidence through a proper full discovery. As I said earlier, E*'s evidence could be false, or inaccurate, or made up. TiVo had the right to seek a verification process to try to prove the E*'s evidence was false or inaccurate.

    Did TiVo do that? No, after the full discovery, TiVo did not dispute E*'s evidence, TiVo only said the E* evidence was "irrelevant."

    Did the DE judge say E*'s evidence was irrelevant? No he did not. He actually made a decision based on the E* evidence, the decision was to disagree with TiVo that the difference was merely colorable.
     
  11. Apr 6, 2009 #1371 of 1468
    dgordo

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    It would be beyond an abuse of discretion for a judge to make the decision you are alleging without a hearing where both parties could present witnesses and evidence.
     
  12. Apr 6, 2009 #1372 of 1468
    dgordo

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    It doesn't even need to be Judge Folsom. The DE judge could have made the colorable difference ruling, but he chose not to, despite what others have said. Regardless, you are correct, the DE case cannot proceed (in whatever court room it may end up) without a colorable difference ruling.
     
  13. Apr 6, 2009 #1373 of 1468
    scooper

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    It makes the most sense for Judge Folsom to make the colorable difference ruling, since he has heard the evidence already.

    That explains my shortcut :D
     
  14. Apr 6, 2009 #1374 of 1468
    jacmyoung

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    Precisely why he said TiVo should have that hearing.

    That was not my point, all I am saying is, he looked at the E* evidence, and based on E*'s evidnece, he told TiVo I could not agree with TiVo your argument that the difference was merely colorable. And it is this very statement I suggest people take to heart when we try to speculate what might be the Judge Folsom's decision.

    Because Judge Folsom is faced with the exact same E* evidence, and TiVo did have a full discovery, and E* did give all the info TiVo asked for. Judge Folsom will be making a decision, following the same standards and logic as the DE judge used, if so, Judge Folsom will have to tell TiVo the same thing, I cannot agree with you the difference (as shown by the same E* evidence) is merely colorable.

    The only way TiVo can win is if TiVo, through the discovery, could dispute the E* evidence as false, or inaccurate, but TiVo did not do that. Therefore E*'s exact same evidence now stands, same as the one stood in front of the DE judge.

    Judge Folsom will have to make his "concrete decision" based on the exact same evidence.
     
  15. Apr 6, 2009 #1375 of 1468
    nobody99

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    And after he makes that decision, he decides what the next action is (declaratory judgement combined with counterclaim of infringement).

    Which is exactly what would have occurred had DISH never filed in Delaware.

    In other words, DISH lost it's attempt to change venue. Chalk one up for the minor-leaguers known as DISH's legal clown posse :lol:
     
  16. Apr 6, 2009 #1376 of 1468
    dgordo

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    Judge Folsom had significantly more evidence/testimony to make his decision.
     
  17. Apr 6, 2009 #1377 of 1468
    jacmyoung

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    I finally see your point.

    But remember, if Judge Folsom denies TiVo's contempt motion, the next thing for TiVo to consider is likely whether to appeal the decision, not what to do with the new action.

    And the next immediate action is actually the second motion on the additional damages. May I suggest TiVo do not try too many tings at one time?:) They had trouble getting one thing done for the last almost whole year.

    Do you serious think TiVo will have the same desire to go through with E* for another four years?
     
  18. Apr 6, 2009 #1378 of 1468
    dgordo

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    According to you the hearing has already happened and a DE judge ruled against Tivo. Make up your mind.
     
  19. Apr 6, 2009 #1379 of 1468
    jacmyoung

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    Have you read those? I did, it is the same, only with more details, nothing of which disputes the evidence before the DE judge.
     
  20. Apr 6, 2009 #1380 of 1468
    dgordo

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    I don't see how they have a choice.
     
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