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 #1401 of 1468
    jacmyoung

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    What I am saying is he made his opinion known to TiVo that based on the E* evidence he looked at, TiVo could not say the difference was merely colorable, and it is such opinion that is very telling, not his ruling, he made no ruling on the issue, but he did offer his opinion.

    I can say, hey it is not my job to say if you are correct or not, but if you really want my opinion, I'd say you are wrong. That was exactly what the DE judge was saying to TiVo.
     
  2. Apr 6, 2009 #1402 of 1468
    Sterling

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    The DE judge could not say it was only colorable.

    And here is the part you are missing.

    The DE judge could not say it was more than colorable.

    It really is that simple.
     
  3. Apr 6, 2009 #1403 of 1468
    dgordo

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    see below.

     
  4. Apr 7, 2009 #1404 of 1468
    Greg Bimson

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    The circular buffer is not part of the hard drive.
    Yet with the evidence provided by DISH/SATS, Judge Farner could not agree that the modifications were more than colorably different, otherwise that would have been his ruling.
    A motion to dismiss was all that was filed by TiVo. Instead, Judge Farner doesn't want the case.
    The case is still "shelved". There is another "motion" pending before Judge Farner, namely, the arguments to transfer the case. That creates a delay, which is why TiVo never filed to have the case transferred.

    This new action if it ever gets to Judge Folsom will not address any of the eight models of DVR that Judge Folsom is currently addressing. Mark my words.
     
  5. Apr 7, 2009 #1405 of 1468
    nobody99

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    So that would be an abuse of discretion, right?

    I believe when Judge Folsom asked if DISH thought it was fair that no notification was made to the court about the workaround, you said that showed bias and could be used as an appeal.

    So just so I'm clear and understand, when the Judge says something against TiVo's position, it's informative and telling them they're wrong and they should be careful. But when a Judge says something against DISH's position, it's an abuse of discretion due to bias.

    I think there's abuse going on, but it's not of discretion. It's an abuse of logic.
     
  6. Apr 7, 2009 #1406 of 1468
    jacmyoung

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    You know I would have never thought to say this, this is about the only time I think I can totally agree with you.

    That in fact, the DE judge produced an opinion, this much I hope is not disputed. Yes he may not have produced a ruling on that issue, nor did he want to, but he did produce an opinion, and that opinion in effect warned TiVo what they had to do to prove their case.

    Only thing is, if, and only if such warning is inappropriate, it will be the ground for appeal not by TiVo but by E*. A district judge should not have made a decision that may influence another on-going related litigation.

    But guess what, he did not. He let his opinion known only after both parties had completed all their arguments, a point I had also made several times before.

    So the bottom line is, a district court judge, while refusing to produce a ruling on the issue, nevertheless finally made his opinion known, without jeopardizing parties chances, and the opinion was based on a "core evidence" presented by E*.

    The question I am asking is whether such "core evidence" had been disputed, if not such "core evidence" stands before Judge Folsom. Never mind what other evidence TiVo had drummed up later, as long as they do not dispute this "core evidence." Remember, E* only needs the evidence to establish a doubt to avoid a contempt.

    The question is, will Judge Folsom produce a ruling that will contradict an opinion of one of his fellow district court judges.

    The answer is very unlikely, because it is not usual for the district court judges to disagree among themselves. It is the job of the circuit court judges to disagree with the disctrict court judges, if parties should appeal.

    In fact it is so much a job for the circuit court judges to disagree, the law even prepares for them to disagree among themselves, by creating a three-judge panel, in the event there is dissenting opinion, they can break the tie.

    But it is not the distirct court judges to want to contradict one another.
     
  7. Apr 7, 2009 #1407 of 1468
    Greg Bimson

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    Judge Folsom, DISH/SATS nor TiVo continually telegraphed Judge Farner about the status of the case in Texas. So to suggest Judge Farner waited for the proceedings in Texas to issue his opinion is rooted in ignorance.
    The "core evidence" was disputed. As the "core evidence" appears to be a complete misrepresentation regarding alleged changes to the adjudged devices, DISH/SATS needed to establish irrefutable evidence (as in actual evidence) that there were changes made. DISH/SATS could not prove when a receiver installed new software, and could not prove that the changes were even substantive enough against the patent claims to even be colorably different.
    What? Judge Farner's opinion is that controversy exists, and therefore, the suit cannot be dismissed. If this "controversy" starts naming devices already being evaluated by Judge Folsom, then this "controversy" is already being adjudged, and the suit is without merit.

    There was no other "opinion". I'd even argue that it is a great disservice to this forum to even suggest there was any other opinion issued by Judge Farner.
     
  8. Apr 7, 2009 #1408 of 1468
    jacmyoung

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    This is an absolutely wrong interpretation of the law and the standards. In a summary contempt proceeding, it is the mover who must prove by clear and convincing evidence, not the defendents. The non-mover's job is to try to establish the doubt.

    It is absolutely not enough for TiVo to simply say it is "irrelevant" and hope to prove anything, especially since the DE judge did not consider it was irrelevant, and the appeals court also did not think it was irrelevant, when TiVo themselves used such "core evidence" to try to prove infringement last time.


    No, please read carefully, the opinion I was referring to was not the opinion that a "geniune controversy" existed, rather the opinion that TiVo I could not agree with you the difference was merely colorable.

    That is your opinion, I disagree. But please do not try to suggest that my such opinion somehow is a disservice to this great forum.

    For one thing, this is an E* forum, not a TiVo forum, if anything I could have said coming here to insult E* subs is a disservice to this forum, but I never made such accusation, I only responded to each and everyone of those accusations without complaint.

    For another, your such tacitc is a fallacy called "appeal to the authority," when one cannot argue on the issue, he instead seeks a supposed authoritative assertion for assistance, this fallacy is the opposite of the fallacy some of you have used in the past called "ad hominem" argument.

    One example of such "ad hominem" argument was when my misspelling was used by some of you to try to discredit me, implying that I lacked any authority to make a good judgment because I misspelled (hence the opposite of the above).
     
  9. Apr 7, 2009 #1409 of 1468
    Curtis52

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    Dish was unable to convince the Delaware court:
     
  10. Apr 7, 2009 #1410 of 1468
    Greg Bimson

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    The sky is green.

    That establishes doubt?

    I was under the impression that a statement that stands up as a fact would be something that establishes doubt. Stating that the DVR's no longer analyze and are no longer automatically flow controlled is not a fact, it is a statement. Those are statements that TiVo ran a freight train through.

    If the defense is a strawman, it certainly cannot establish doubt...
    Because Judge Farner did not even "consider it", so that argument is irrelevant...
    When the appeals court upheld infringement on the Software Claims, without the "index table"?
    Only two issues, due to modifications:

    1) there is a statement that the DVR's no longer parse, yet they still do exactly what they did when found infringing, where five of five experts agreed that the parsing met the limitation.

    2) there is a statement that the DVR's are no longer automatically flow controlled, yet they still have the circular buffer that met the automatically flow controlled limitation.

    Any other modifications do not apply to this case, including the removal of an index table, as those modifications are irrelevant to the Software Claims.
    Not the opinion, but the argument.

    The suggestion is that Judge Farner waited until now in order to issue an opinion, and that Judge Farner had to pay attention to all of the issues in front of Judge Folsom before issuing his opinion. There is no evidence Judge Farner even knows about the evaluation of eight models of DVR in front of Judge Folsom. But it is now spun as if it is a fact.
    Just trying to accurately inform the public. I thought that is what a forum is about. I don't believe the forum is a place for a propaganda machine.
     
  11. Apr 7, 2009 #1411 of 1468
    jacmyoung

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    And as I have already said one cannot simply read a statement without consider the context it was in. If you read further the judge explained the reason for the above opinion, that was because TiVo did not get a chance for a full discovery to try to dispute the E*'s evidence.

    BTW the DE's decision is full of the DE judge's opinions, aside from what we have discussed, he also said this new case was not "fourm shopping," and additionally this new case would not have a "chilling" effect.

    I can find more of his opinions, but one thing is true, he made one ruling and one ruling only, to dismiss TiVo's motion.

    He made no other ruling, for example he made no ruling whether the difference was in fact more than colorable, he also made no ruling to transfer this case, even though he did express his opinion that this case should be transfered.
     
  12. Apr 7, 2009 #1412 of 1468
    jacmyoung

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    I disagree and have made my arugments on this one, I will not repeat unless as I promised if Curtis52 wish to agree with you:)

    Except one thing, TiVo did not dispute that the "core of the invention" is removed, only that the removal is irrelevant. To that end, I have also made my argument so I will not repeat.

    Please read again, he most certainly considered it, he said himself he read the E*'s evidence carefully, and based on such evidence he could not agree with TiVo that the difference was merely colorable.

    Absolutely false to say they still do the same, it is a fact E* said they no longer do the "start codes," and to that end again TiVo had no response.

    The buffers themselves cannot meet the automatic flow control limitation, it is what the buffers are used for that may prove whether the flow control is still taking place. To that end TiVo did not even try, they only pointed out look there are still some buffers on the hard drive, did not explain how those buffers managed to do any kind of flow control as part of this invention.

    If so why did TiVo use the index table to argue on the hardware claims before the appeals court? And why did the appeals court accept such index table as relevant? Just you know the term "index table" also did not appear in the hardware claims.

    That was not my suggestion at all. Judge Farner waited until now to issue his ruling, not his opinion.

    But the reason he waited now to issue his ruling was because in order to do so, he had to let his opinions known, and letting his opinions known too soon would have unfair influence on the parties on going litigation.

    But he had to express his opinions in order to render his ruling, because TiVo asked him to. Without experssing his opinions, he would not be able to tell TiVo whether he would dismiss this motion or not. He could not just say hey I want to dismiss your motion but I do not wish to tell you why.
     
  13. Apr 7, 2009 #1413 of 1468
    Greg Bimson

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    Start codes have nothing to do with parsing. It is an irrelevant argument.
    Wholly inaccurate. The buffers in question are not part of the hard drive. And TiVo's expert Dr. Storer did explain how flow control is accomplished. That makes this another irrelevant argument.
    Because the index table is a key component in conjunction with the Media Switch. Without the index table, the Media Switch doesn't work correctly.

    The index table isn't the only piece of the invention that determines infringement. That fact continually is lost, which in turn makes this another irrelevant argument.
     
  14. Apr 7, 2009 #1414 of 1468
    nobody99

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    Agree with what? I never made a statement. I simply pointed out that your earlier comments are contradictory.

    Well, we're off to a bad start. This much is disputed. He is in the process of moving the case to Texas. Any other interpretation of what he said must be taken in that context.

    He did no such thing.
     
  15. Apr 7, 2009 #1415 of 1468
    nobody99

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    Please provide the specific DISH patent number which TiVO must ask Judge Folsom to declare TiVo'S DVR non-infringing.

    Please provide supporting evidence that a "counter claim does not happen in a declaratory judgment case."
     
  16. Apr 7, 2009 #1416 of 1468
    dgordo

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    You must be joking. Judges from different districts disagree with each other everyday. Federal court decisions that never reach the SCOTUS have completely different meanings across the country. What a judge under the 9th circuit decides has no force on what a judge in the 5th circuit decides and so on.
     
  17. Apr 7, 2009 #1417 of 1468
    dgordo

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    Its amazing that it is right there but some cant find it. :confused:
     
  18. Apr 7, 2009 #1418 of 1468
    dgordo

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    Don't bother, we have already established that this is nonsense.
     
  19. Apr 7, 2009 #1419 of 1468
    jacmyoung

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    During the 2/17 hearing, E* expert witness said the start codes had everything to do with parsing, because the start codes were the “audio and video data” described in the first step, since they are no longer parsed out and then stored, the first step was no longer met, TiVo did not even say it was irrelevant, therefore you cannot just say so yoruself, TiVo simply had no response to E*’s such assertion. If E* made an assertion, TiVo simply did not have a response, then the judge will have to accept E*'s assertion.

    Again please do not say things TiVo did not say as if the judge will hear you. Only say what TiVo had said. Likewise, I only say what E* had actually said, not anything E* did not say, because the judge will not hear it.

    They are, Dr. Storer pointed to the “circular buffers on the hard drive” when he described the so called new “multiple buffers.”

    Now E* is saying the indexing is a key step of the parsing as described in the first step of the software claims, what is TiVo’s response? But the word “indexing” is not in the claim description therefore it is irrelevant. But the words “index table” are not in the hardware claims, why did TiVo say “index table” was a “key component?” Please do not use any term that is not literally described in the claim limitations to try to prove anything, that is pretty much what TiVo is saying now. For example, the claims never mentioned the term “PID filter” nor “circular buffers.” In fact if TiVo’s logic prevails, TiVo must go into E*’s DVRs to try to find out if there is this item labeled “physical data source,” or a “source object,” or a “sink object” or a “control object,” before TiVo can even make them “relevant” to even begin to discuss infringement.

    Now can you show me any items in a DVR with such above labels? I can only find a hard drive, a motherboard, some cables, some weird looking chips, a bunch of resisters and so on. There is nothing labeled “source object” or “sink object.”…Therefore they are irrelevant, now can you see how this argument will lead to?

    As long as the index table was one of the things that caused infringement, and as long as it is no longer there, there exists the doubt that it may no longer infringe, that is all E* needs to establish.

    All the items must be there to prove infringement, remove one, the whole thing falls apart.
     
  20. Apr 7, 2009 #1420 of 1468
    scooper

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    Not only there - but in that particular order.
     
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