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Discussion in 'General DISH™ Discussion' started by Curtis52, May 17, 2008.
I don't know. Is this where you give me the answer?
Good then how about you tell the truth, why would those "adjudicated modified products" (DP501s without DVR functions) be allowed to continue to be used in the field?
I have an answer, but I am sure you can at least speculate one yourself, how about try it? Anything you can come up with.
Again, so customers can still watch TV?
Greg has answered that accurately.
If you don't like his answer you can contact Judge Folsom.
Despite the fact those adjudicated products are forever infringing products and forever going to infringe on Tivo's patent? Why?
Kmill14 said had software download been not available, those adjudicated products would be recalled, meaning DISH would have to replace all of them with "new products" that do not infringe. That made total sense did it not?
So why not do everyone a big favor and kill all those DVRs? Especially from a legal standpoint, since those DVRs will always be infringing products, allowing them to be used in any shape or form will mean allowing DISH to continue to infringe, isn't this against the goal of the injunction in the first place?
The judge already said, so was the appeals court, that disabling was not a big of deal, the inconvenience to the customers in this case did not out-weigh the harm to Tivo if those infringing products were allowed to continue to infringe.
Can the guarantee that all DVR's received the revised software?
The judge must thought so, otherwise why order a software download to kill the DVR functions? Why not just order them recalled?
Order a software to kill the DVR functions, or order a software to kill the receivers, the verification process will be exactly the same.
"Infringing Products" that have had their DVR functionality disabled per the injunction are acceptable to the court and Tivo. They will always be referred to as "Infringing Products" because they meet the legal definition. They will always be adjudicated products because a court has ruled on their legal status. It doesn't matter in they actually infringe or not ... they meet the definition and will always be adjudicated "Infringing Products".
Even if DISH's way of disabling the DVR functionality required exchanging the receivers and DISH physically exchanged all "Infringing Products" for modified "Infringing Products" those products would remain legally defined "Infringing Products". Perhaps it doesn't make sense, but actual continued infringement is not part of the court's definition of "Infringing Products". Understand that.
It is like a person who commits a felony losing their right to vote. They are forever labeled a felon. They may earn the title of ex-convict by getting released from jail. They may actually stop committing felonies. But they will always be a felon and treated as such. Ceasing crime doesn't change the label. (Voting rights may be restored by a court or pardon, but unless the conviction is overturned the label stands.)
"Infringing Products" will remain "Infringing Products" and adjudicated.
Inaccurate reading on the injunction leads to statements like these. The judge didn't order a software download. He ordered a result. It doesn't matter how DISH gets to that result as long as they follow the injunction. DISH could send techs into the field with sledgehammers for all the judge cares ... as long as the DVR functions are disabled as ordered and not enabled on new placements. (Technically the injunction does not require that 192k units remain DVRs nor that the "Infringing Products" are usable for any purpose ... as long as the DVR functions are somehow disabled as ordered.)
Read the injunction, it might help.
That is the clearest analogy anyone has come up with, by far.
Not forever. The patent expires.
The patent expiration still doesn't change the definition of "Infringing Products". The DVR functions may be restored to the "Infringing Products" when the patent expires (per the injunction) but the definition doesn't change.
(Actual infringement can end any time ... but the legal definition remains the same. "Infringing Products" for the purpose of this injunction has been defined. Only a court can change that definition.)
Agreed, but the sentence to which I was responding didn't have the "Infringing Products" terminology. I should have been more clear that my "not forever" statement reflects on TiVo's patent, so forever infringing "on TiVo's patent" is only defined as the length of the patent's term. One cannot infringe on a patent that no longer exists.
jacmyoung, quick and simple question.
If DISH released a new receiver, call it the DP-8080, and it used software that was later found to be only colorably different, would this be an "Infringing Product" in context of the injunction?
The receivers can stop infringing at any time ... if you believe DISH they stopped infringing a long time ago. But "Infringing Products" remain defined as "Infringing Products" regardless of if they infringe.
It isn't the software that is the problem ... it is the product. The product is a DVR.
If the DP-8080 is similar to one or more of the "Infringing Products" the court may decide that it is "only colorably different" and be under the current injunction. It would be up to DISH to prove that the DP-8080 is more than colorably different.
If the DP-8080 is not similar to any of the "Infringing Products" it would be more than colorably different and a new trial would be required to figure out if that product infringes.
The argument over whether or not the DP-8080 is or is not only colorably different probably would get a mention of the software by both sides ... but the injunction isn't against software that is only colorably different, it is against products that are only colorably different.
It was sort of a trick question. It wouldn't be an "Infringing Product" under any circumstance. It could be an infringing product, though.
Of course everything we are discussing is within the context of a valid patent, we are not discussing anything after the expiration.
"So that the customers can still watch TV" is not a good enough answer because the judge should not allow an infringing product in the field to continue to infringe, according to you at least in this case.
So allowing the DP501s to continue as non-DVRs to be used in the field is allowing DISH to continue to infringe the Tivo patent, according to you, why?
The customers can still watch TV, in fact they can still use DVRs, as soon as DISH replace them with "new products", why would the judge allow the infringing products to continue to infringe?
I missed this. Where did I say that?