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TiVo vs Echostar ... Discussion leading to September 4th Hearing

Discussion in 'General DISH™ Discussion' started by Curtis52, May 17, 2008.

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  1. Jun 5, 2008 #1341 of 2549
    TexasAg

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    Others have said Echo could sell new DVRs with the modified software and not violate the injunction. I get the feeling if Echo sold brand new DVRs with the same model numbers and the new software, you'd view that as a violation of the injunction, am I right? If Echo sold the DP-501 DVR with the new software, you'd find Echo in contempt, right?
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  2. Jun 5, 2008 #1342 of 2549
    kmill14

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    It says so right in the injunction:

    ********
    This injunction shall run until the expiration of the ’389 patent.
    This Court retains jurisdiction over Defendants to enforce any and all aspects of this Judgment and Permanent Injunction.
    ********

    As you can see, the JUDGE makes the decision on whether or not E* is no longer infringing, or can turn the DVRs back on. E* does not get to make that call.

    So again, when the Judge asks how many of model 501 is in service, and then 508, and 510, etc...what will their response be? As far as saying "without any question" that the models infringe or not, I will assume they do until the Court/a Jury decides that they do not.

    Innocent until proven guilty, and then you are guilty until proven innocent.
     
  3. Jun 5, 2008 #1343 of 2549
    TexasAg

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    Answer what I just asked, and I'll respond to your question.

    If Echo started selling the DP-501 DVR with the new software, you'd find Echo in contempt, right?
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  4. Jun 5, 2008 #1344 of 2549
    kmill14

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    You'd certainly be dumb to do so, since the DP-501 has been proven to infringe on TiVo's patent. The Judge has no idea whether this new software is any different than the old software, and assumes it still infringes, and will ask that it be shut off.
     
  5. Jun 5, 2008 #1345 of 2549
    TexasAg

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    No kidding. Point to anyone here who has said "Echo's not in contempt since Echo said so."

    It's as I thought, then. You are going only by the model numbers of the DVRs, as if the model numbers somehow control what is infringing and what isn't inside the DVRs.

    As far as you're concerned, Echo could have built a new DVR with new electronics, written completely new non-infringing software, and you'd assume the new DVR infringes as long as the model number is the same. You'd find Echo in contempt based solely on the sticker on the outside of the box.

    So should the judge even bother asking Echo if the new DVR with the new software and the same model number is any different, or just lock up Charlie and confiscate his house?
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  6. Jun 5, 2008 #1346 of 2549
    HobbyTalk

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    Don't forget when that injunction was written, both the software AND hardware was said to infringe. At this point the hardware no longer infringes. It is much harder (if not impossible) to modify the hardware on devices in the field where it is fairly easy to modify the software.

    Since the basis for that injunction is based on both the software AND hardware infringing and those facts have changed, the injunction may no longer be the proper remedy.
     
  7. Jun 5, 2008 #1347 of 2549
    nobody99

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    Really? You think they are actually going to take this course with the judge? Because if I were judge, that would sure piss me off. Let's look at some of of DISH's arguments against an injunction:

    Why would three million families need to replace them if they were just turned off and then back on?

    Really? Turning off the DVRs would cause "severe and irremediable harm?" Oh, wait, they did that anyway? What was the harm again?

    If you are suggesting that DISH believed that it followed the intent of the injunction, you should re-read their arguments against an injunction. They knew exactly what was intended. Turn off, and don't turn it back on.



    Simple test:

    At the time the injunction was issued, was it a model that was found to infringe? If it is, get out a sharpie and writing "Infringing Product" across the top. Go ahead and load new software. Does it still say "Infringing Product" on it in black magic marker? Yes, then it's infringing. Ok, let's send out a sticker with a new model number (and since we're already going to piss the judge off anyway, let's call it model #FOLSOMSUX). Instruct the customer to put the sticker over the old model #. Does it still say "Infringing Product" on it in black magic marker? Yes, then it's infringing.

    Absolutely correct. For new products.
     
  8. Jun 5, 2008 #1348 of 2549
    kmill14

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    Help me out here. When a company makes a new "anything", they typically apply a new model number to it in order to differentiate it from older models, right?

    The model #'s listed in the trial and deemed to have been infringed are always going to infringe, regardless of what new software patches get loaded into it. This will continue until such time that the Judge rules that one of these software patches achieves the purpose of allowing the product to stop infringing.
     
  9. Jun 5, 2008 #1349 of 2549
    kmill14

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    The injunction was based on THE PRODUCTS infringing on a PATENT. As far as the court is concerned, the PRODUCTS still infringe on the PATENT.
     
  10. Jun 5, 2008 #1350 of 2549
    TexasAg

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    You're citing arguments made, what, 12-18 months before the new software was even designed? I never said they only had to turn them off and then turn them back on. They turned them off, then modified the DVRs. The original DVRs found to infringe no longer exist. Where does it say Echo cannot modify the DVRs and then place them back in service?

    So do you agree then that Echo would infringe if they designed a completely new DVR and then released it with the same model number, say DP-501?
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  11. Jun 5, 2008 #1351 of 2549
    TexasAg

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    Really, they will ALWAYS infringe REGARDLESS of the new software? What exactly about them infringed? Oh yeah, Tivo's software claims.

    And what do you know? The courts have a nice procedure for that: the "more than colorably different" standard applied during contempt proceedings.

    And the court needs to decide whether the products continue to infringe the patent, before holding Echo in contempt for violating an injunction designed to prevent future infringement, yes?
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  12. Jun 5, 2008 #1352 of 2549
    nobody99

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    At the time of the injunction, some number, call it 3,452,152 boxes were found to infringe.

    If Dish comes out with a new box with new electronics with the same model number, TiVo can certainly request a contempt hearing to see if it is not more than colorably different than the existing box.

    Hell, Dish may even continue to manufacture boxes with only new software and a different model number. TiVo can ask for a contempt hearing to see if it is not more than colorably different than the existing boxes.

    But the 3,452,152 boxes that were in existence at the time of the injunction need to be shut off.
     
  13. Jun 5, 2008 #1353 of 2549
    spear61

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    The judge's injunction is just like the "389" patent in that you need to "parse ( analyze per the patent)" every word. If he wanted all the models numerated to have their DVR's shut down, he would have said "Products; 5xx....". He didn't do that. He said "Infringing Products; 5xx....". When the order came into force in 2008 (not 2006 when there were indeed infringing products), the infringing products (software) no longer existed. A patent injuction is not used to provide monetary damages, but is used to prevent future damage to the patent holder caused by continued infringement. No current infringement - no contempt.
     
  14. Jun 5, 2008 #1354 of 2549
    scooper

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    Wrong answer - he got a brief from Echostar that they have developed a workaround (described in detail) and Echostar has deployed this modified software to the "Infringing Products" so they are no longer "Infringing Products". At best, all you can say about the software is that it is "More than colorably different", which by previous case law means that Echostar can NOT be found in contempt UNTIL the modified software has been shown to infringe IN ITS OWN TRIAL. See you in Delaware.
     
  15. Jun 5, 2008 #1355 of 2549
    TexasAg

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    Even though only the software infringed and the software has been replaced?

    I think that it's pretty silly to say "Echo can sell a DVR with the modified software and not be in contempt," then argue "Echo cannot modify the existing DVRs to use the modified software or they are in contempt."

    It's one or the other - either Echo can sell and use the new software, or they can't. If they can, they should not be held in contempt.

    Amen, brother/sister spear61!
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  16. Jun 5, 2008 #1356 of 2549
    nobody99

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    From the injunction, again:

    If we can't agree that "infringing products" means those particular receivers that had already been manufactured...we aren't even going to be able to agree that we're both speaking English.


    Absolutely true with new products, not true in the case of existing products already in the field that are specifically adjudicated to have infringed.

    From the injunction:

    It sure seems like the injunction is for more than continued infringement. It's in place of monetary damages.
     
  17. Jun 5, 2008 #1357 of 2549
    nobody99

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    Why is that silly? TiVo's just getting its stolen merchandise returned by the police. It doesn't matter if DISH modified it so TiVo could no longer identify it.

    As far as new software goes - we'll see. If Folsom says that the new software is not more than colorably different, the whole "existing vs new" argument is moot anyway, and DISH is in a world of hurt.
     
  18. Jun 5, 2008 #1358 of 2549
    bobcamp1

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    That was me. From my experience. Having filed patents before and having easily worked-around software IP in the past. And even hardware IP, too.

    If the judge finds the new software is substantially different in the code under dispute, he cannot find for contempt. And if he did, that decision would be overturned on appeal. The appeals court has whittled down the current injunction. They didn't change the text -- they didn't have to. There is plenty of case law and regular laws, plus their ruling, which already limit the injunction. I've been told that changing the injunction just to add the word "software" is perceived as stepping on another judge's toes to correct something trivial and obvious. So it's not done. Also, judges generally don't put software version numbers in their injunctions (some do) -- they just refer to the product it is in. It's assumed that he meant the code that was being discussed for the past three years.

    Most case law needs a subscription, so I don't have access. And neither does Google, which is why you can't search for it. But here is one. A modified product does not automatically fall under the injunction.

    http://www.fedcirc.us/case-reviews/bass-pro-trademarks-l.l.c.-v.-cabelas-inc.html

    The big question is, is the new software different enough? We'll know in September. Or sometime next year, if you count the appeal.
     
  19. Jun 5, 2008 #1359 of 2549
    TexasAg

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    Then why use the word "infringing" at all, why not just "products"?

    You would agree that "Products: A, B, and C" and "Infringing Products: A, B, and C" should have different meanings.

    Agreed, certainly. But my point has been all along that Echo deserves at least the chance to show they are not in contempt since the new software might be "more than colorably different."
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  20. Jun 5, 2008 #1360 of 2549
    nobody99

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    A point to think about...

    There are actually two parts to the injunction. The first part is sort of the traditional stuff that we've been talking about:

    That prevents DISH from making or selling new products for customers unless the new products are more than colorably different.

    There's a second part of the injunction, which has some terminology that I find interesting:

    The "disable the DVR functionality" has no "colorably different" language. I think it's clear that it was, as kmill14 has pointed out, used instead of monetary damages.

    So the argument boils down to this as it relates to "placed with an end user or subscriber": Does the term "Infringing Products" mean "DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942." or does it mean "products that are still infringing today."


    My position is straightforward: if, at the time of the injunction, a customer had one of the listed model #'s, DVR functions need to be turned off.

    The fact that the injunction says "Infringing Products" in capital letters shortly after the text collectively the “Infringing Products” appears is pretty convincing evidence.
     
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