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 7, 2009 #1421 of 1468
    jacmyoung

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    Yes.

    But the above arguments are not even the point. I am not going to go circular with Greg over and over on them, we have all made our views known.

    Today we have a new piece of information, the DE judge’s ruling to dismiss TiVo’s motion to dismiss the new action.

    This new ruling contains a lot of the DE judge’s opinions, among which is one saying, he did review E*’s evidence, and he did consider the evidence relevant, and based on such evidence, he could not agree with TiVo that the difference was merely colorable.

    It is this opinion, not anything else said in the ruling, only this opinion, that I’d like to point out, that it may show which direction the wind is blowing. Not saying Judge Folsom will have to follow such opinion, or disregard any new evidence.

    But Judge Folsom will look at this DE ruling, as one of the many pieces of documents, before making his ruling. If he decides to make a ruling that there is merely colorable difference, he must be sure the justifications are most compelling, because on appeal, E* can use the DE judge’s opinion for support, to point out hey there is now doubt because two judges appear to have different views, among other things. It is true that judge Folsom’s opinion will be based on more thorough evidence and he has more experience on the issue, but that does not matter, because in a summary contempt proceeding, as I have discussed before, the defendants only need to point out that a dispute exists, regardless the credibility of the person who has caused such dispute, because the credibility of the person is not to be judged in a summary proceeding, rather to be debated in a full trial.

    When both parties review the new information before them, they must try to guess what is the implication of such new info, does it mean Judge Folsom will more likely, or less likely say, the difference is merely colorable.
     
  2. Apr 7, 2009 #1422 of 1468
    Tower Guy

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    I agree with your opinion.
     
  3. Apr 7, 2009 #1423 of 1468
    dfd

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    Are you serious?

    The case in DE IS GOING TO BE SENT TO TX - take that to the bank.

    There is nobody else reading this as a victory for E*.

    Where is the typical E* proclamation of victory that we've seen after every court ruling?

    Why should a judge in TX that has been working a case for years need to pay any attention to what a judge in a different district writes in a ten page statement?

    E* and TiVo both had their time in TX to make their case. Nothing the DE judge says or does will have any impact on what Folsom decides.
     
  4. Apr 7, 2009 #1424 of 1468
    nobody99

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    So when Judge Folsom said that DISH maybe should have informed him about the workaround, you don't think that shows which direction the wind is blowing? When Judge Folsom asked DISH if he was supposed to read the Quarterly Report, you don't think that shows a gale force warning in effect? When Judge Folsom mentioned that the Delaware filing was made 45 minutes after his decision last year, that doesn't show a Hurricane Warning in effect?

    Last time I checked, Judge Folsom is the only guy who matters. So I would pay much more attention to the way his wind is blowing.
     
  5. Apr 7, 2009 #1425 of 1468
    nobody99

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    This statement is so ludicrously laughable that I don't even know how to respond. But let me take a shot.

    Suppose TiVo filed new case in Alviso, California (where they are based). Suppose that Judge said "sorry, I can't take this case, I'm transferring it to Texas. But geeze louise, TiVo, you have a damn strong case here. I mean, seriously, this is a slam dunk."

    Must Judge Folsom now incorporate that into his decision as well?
     
  6. Apr 7, 2009 #1426 of 1468
    scooper

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    I'm still waiting on Judge Folsom's ruling about the colorable differences first.
    If he should rule that there are more than colorable differences - THEN we'll see if the DE case gets moved to TX - but I don't see any reason why it should, since anything else after that in TX doesn't make a difference until the DE case IS transfered.
     
  7. Apr 7, 2009 #1427 of 1468
    nobody99

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    I do appreciate your position, but I think it's time that we hold people on this message board to certain standards of accuracy and truthfulness. I think alot of us have grown tired of the outright falsehoods and misinformation, and I do think it's completely fair to ask someone who has makes a very specific claim to either provide very specific evidence or to admit that it was purely made up.

    That said, I hope the moderators of this forum share what I believe is a very fair position.

    So, I'll ask again.

    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."
     
  8. Apr 7, 2009 #1428 of 1468
    dfd

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    DE ruling 3/31

    By my reading (maybe add a day for shipping and hadling)

    E* response due 4/14 (10 pp max)

    Tivo response due 4/21 (5 pp max)

    My bet is that the DE judge will rule to transfer before Folsom makes his ruling one way or the other. He has pretty much said he will and is just crossing T's and dotting I's at this point. He'll read the 15 pages and bounce the case.
     
  9. Apr 7, 2009 #1429 of 1468
    dfd

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    Just noticed the last foot note, "In the Court's view, TiVo should have raised an alternative motion to transfer with the instant Motion."

    "Don't need to be a weatherman to know which way the wind blows" - RZ
     
  10. Apr 7, 2009 #1430 of 1468
    jacmyoung

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    I made that point too, TiVo made a mistake, had they simply made that request to transfer, the DE judge would have easily granted it, and he would not have been forced to produce all those opinions.

    But instead, TiVo wanted to dismiss the new action all together, and in doing so, TiVo argued because the difference was merely colorable, in fact TiVo first said there was no difference, those were the same DVRs, also TiVo said E* was "forum shopping" and the new action would have serious "chilling effect" on TiVo's business.

    Now the judge was forced to respond, and in doing so he dismissed all TiVo's arguments, but he could not release such opinions because E* could have argued that by releasing all those opinions DE would have reminded TiVo what TiVo needed to do to win.

    As a result, the ruling is released only now, and the case still cannot be transferred until the parties make their filings, and by that time who knows what E* may say to try to stop the transfer, it only totally complicates the whole thing for the court, and all because TiVo was too arrogant to think they could call E* a lier, a forum shopper and someone who wanted to simply try to kill its competitor by claiming some design around to fool the court.

    But E* provided the design around evidence to the judge, and he looked at it and said guess what, I could not agree with you TiVo, not only could I not agree that the difference was merely colorable, but E* was not forum shopping, it would not have some "chiling effect" as TiVo you said.
     
  11. Apr 7, 2009 #1431 of 1468
    Greg Bimson

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    Start codes were not the "audio and video data" which found infringement three years ago. Therefore, in order to defeat the "parsing" limitation, DISH/SATS must create controversy where none exists. DISH/SATS must pay their expert to recant exactly what he testified three years ago, yet four other experts came up with the same opinion: PID filtering meets the parse step.

    Dr. Rhyne, DISH/SATS expert, changed his mind only because the jury found DISH/SATS guilty of infringement. Not because a definition changed. That may have something to do with the pay he received from DISH/SATS.
    1) Please do not tell me how to present an argument. That is usually a last resort for those losing their argument.
    2) This is exactly how DISH/SATS is arguing. PID filtering met the parse limitation three years ago, but let's change the parse step to include start codes and an index table. Automatic flow control is great now that DISH/SATS uses a single buffer, but that buffer is actually a circular buffer the same as it was when adjudged three years ago.

    Nothing which still meets claim limitations has been removed. That is TiVo's argument. Suggesting that TiVo did nothing is simply as irrelevant as the arguments DISH/SATS presented.
     
  12. Apr 7, 2009 #1432 of 1468
    dgordo

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    I completely agree with you, I was pointing out that on that particular point it has already been established that it was misinformation. But I can see how it could be missed among all the other misinformation.

    I think the moderators agree with you, however, it is my opinion that they often don't understand the finer points enough to stop the misinformation or they would.
     
  13. Apr 7, 2009 #1433 of 1468
    Curtis52

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    Yep.

    Chu:
     
  14. Apr 7, 2009 #1434 of 1468
    Ron Barry

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    Since no moderator has made any statement either way, I am not sure how you could draw that conclusion dgordo, That said, discussion of moderation in public forums is not allowed. If anyone has an issue with moderation feel free to PM any moderator or admin of the site to discuss your concerns or use the report button located on the left of each posts.
     
  15. Apr 8, 2009 #1435 of 1468
    jacmyoung

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    That is your opinion, but TiVo never said such, please do not make it as if TiVo said so.

    E*'s expert asserted that the "start codes" were the "said audio and video data" and E* new design no longer did the "start codes," to which TiVo simply had no response. Again TiVo did not respond by saying "start codes are not the 'audio and video data'", so again do not say such thing, because the judge will hear no such assertion from you.


    The reason why he changed his mind is not the point, the question is whether he was correct in changing his mind. The decision the judge must make is if it is indeed true that he was wrong last time, and correct this time.

    TiVo needs to prove that he is wrong by changing his mind, that his current position, after the change, is now wrong. TiVo cannot simply say he said so before, and he cannot change his mind. If this is all TiVo can say, then the judge must agree with his current position, because TiVo did not dispute his current position, only pointed out he was saying it differently last time. That is not enough.


    I did not tell you how to present an argument, only that please do not make an argument that is not that of TiVo's position, because it is useless, the judge will not hear it.

    And when E* does so, TiVo must prove no, start codes are not the audio and video data, and indexing is not a part of the parsing as described. TiVo did not do so.

    Three years ago that circular buffer existed as part of the hard drive, therefore it still exists today. Three years ago such circular buffer was never discussed, it was not the so called "multiple buffers" identified to have formed the automatic flow control functions. The multiple buffers that did the automatic flow function are not gone, so TiVo pointed to some circular buffer, which was a generic part of the hard drive, and said, look you still had some circular buffer, never mind what it does, just that, hey, there is still circular buffer.

    E* said the "start codes," which are the "audio and video data," are also removed, TiVo totally skipped that part. TiVo simply did not address that part.
     
  16. Apr 8, 2009 #1436 of 1468
    jacmyoung

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    Again, TiVo was only saying, "indexing" was a term that was never evaluated by the court, and never existed in the software claim terms, therefore is irrelevant.

    But let me quote what the appeals court said, and keep in mind they were discussing the hardware claims, which also do not contain the term "indexing:"

    Again, keep in mind the hardware claims do not mention the term "indexing", but the appeals court had no problem accepting the notion that "indexing" was a valid issue, only that the appeals court did not agree that "indexing" literally met the limitation of the term "separation" in the hardware claims.

    The term "indexing" was construed by the appeals court as "logical separation" or "logical cataloguing." So you see, indexing was constructed by the court back then, not something "irrelevant," even though it is never a hardware claim's term. TiVo's memory was a bit too short.

    E* now is saying, just as TiVo was arguing back then, "indexing" is an essential part of the software claim first step, because the first step in the software claims describes a logical separation (parsing, or indexing) of the audio and video data (the start codes), and the new design does no such thing anymore.

    To that end TiVo was only saying but indexing was irrelevant, and as far as the start codes being the audio and video data, TiVo simply had no response to that.

    Of course TiVo is correct that back then "indexing" was never used as an issue in discussing the software claims. But now E* is making it an issue related to the software claims, TiVo cannot simply say it is irrelevant, TiVo must prove "parsing" in the first step of the software is not "indexing" and the "audio and video data" in the first step are not the "start codes." TiVo did neither.
     
  17. Apr 8, 2009 #1437 of 1468
    nobody99

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    All quite interesting. You do realize that the hardware claims were remanded, and we're all talking about the software claims, right?
     
  18. Apr 8, 2009 #1438 of 1468
    jacmyoung

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    Now let me try to explain why I said the DE ruling and the DE judge's opinions will complicate things for TiVo.

    Take one example when the DE judge said regarding the "chilling" argument by TiVo:

    What if Judge Folsom finds E* in contempt? It basically means TiVo had proven E*'s design around was a "sham" and in bad faith, not to be encouraged by this court, in fact to be totally condemned by this court.

    Now the question is not if Judge Folsom might be technically correct or not, he might just be correct that E*'s design around had failed, but the problem is the DE judge just agreed with E* that patent design-arounds should be encouraged. Therefore E*'s effort in general should be encouraged, even though the effort sometimes may fail. But you cannot blame them for trying.

    It will make it more difficult for TiVo to argue during the damage motion that how should E* be punished for this design around attempt, and in the future how to address the issue if E* should try another design around.

    Not saying E*'s design around will fail, in fact I believe the design around was a success, but even if I accept TiVo's position that the design around had failed, at least TiVo's motion to dismiss the DE new action will end up complicating the things for TiVo, even if TiVo could possibly convince Judge Folsom the difference is only colorable and infringement is still clearly present.
     
  19. Apr 8, 2009 #1439 of 1468
    nobody99

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    There was no ruling.

    (redacted)
     
  20. Apr 8, 2009 #1440 of 1468
    nobody99

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    If Judge Folsom even considered anything said in the Delaware case, it would result in an emergency appeal being granted and DISH would be required to post a $150 million bond due to expected damages. I doubt they want that.
     
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