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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. May 20, 2008 #161 of 2549
    Curtis52

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    Judge Folsom said that money damages aren't an adequate remedy:

    "Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff – Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiff’s DVRs. The availability of the infringing products leads to loss of market share for Plaintiff’s products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm – Plaintiff is losing market share at a critical time in the market’s development, market share that it will not have the same opportunity to capture once the market matures.

    One thing the parties agree on is that DVR customers are “sticky customers,” that is they tend to remain customers of the company from which they obtain their first DVR. Thus, the impact of Defendants’ continued infringement is shaping the market to Plaintiff’s disadvantage and results in long-term customer loss. This is particularly key where, as is the case here, Plaintiff’s primary focus is on growing a customer base specifically around the product with which Defendants’ infringing product competes. And, as Plaintiff is a relatively new company with only one primary product, loss of market share and of customer base as a result of infringement cause severe injury. Thus, the Court concludes that the full impact of Defendants’ infringement cannot be remedied by monetary damages. "
     
  2. May 20, 2008 #162 of 2549
    Greg Bimson

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    And that was the reason Judge Folsom did not stay his injunction. Judge Folsom felt that DISH/SATS would not win a complete mistrial or reversal outright upon appeal, so he left the Court of Appeals to determine what needed to be done with the injunction. Turns out Judge Folsom was correct; his injunction came out of appeal unscathed and in full force and effect, as DISH/SATS did not address any issues with the injunction upon appeal.

    Now Judge Folsom has the opportunity to rule on a request where an infringer is ignoring part of the injunction he issued.
     
  3. May 20, 2008 #163 of 2549
    spear61

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    And, that is why I think it likely that the old Dish DVR's are likely to get whacked. Dish manipulated and worked the system until they probably got a non infringing DVR up and running. That does not change the fact that back in 2006, an injunction was issued to disable a series of specifically named boxes that were operating using infringing software. If the judge does not enforce his injunction, one must ask- why do we have a patent system?
     
  4. May 20, 2008 #164 of 2549
    scooper

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    With the way our's is performing now - I'd have to ask the same thing, with a different spin on the question. I wouldn't call what we have now a "working patent system" - not by any stretch of the imagination....
     
  5. May 20, 2008 #165 of 2549
    jacmyoung

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    Very good point, which is why people speculate more than likely the judge will enforce his existing injunction by finding DISH in contempt, but if it comes to that, and when DISH decides to appeal such ruling, they also will have compelling argument to make to the appeals court:

    1) It was the same appeals court which overturned the hardware verdict, which changed the circumstances in which the injunction was based on, and the appeals court did ask the parties to address the hardware issue but Tivo chose not to. Remember what you said: "The judge has broad authority to do what he wants or change his mind at a later date. And, when the order is "gray" , the defendent gets the benefit of the doubt."

    The law insists that the injunction be very clear and concise, which is what the judge did, to be very concise on what specific items to be on the injunction list, at the same time, it must be concise to the verdict it uses as basis. But now the basis is no longer concise, because half of the verdict was reversed.

    2) The other basis the injunction was based on was the old infringing software. Now that DISH claims the old software had been replaced with the new and non-infringing software. The question is not whether the judge believes DISH or not, rather that the mere fact DISH did replace the infringing software had again changed the basis in which the injunction was based on, and therefore the issue has become less black and white, rather a little grayer. In such event the judge must consider in the benefit of the defendent.

    Not that the judge should let DISH go free, not at all, rather give DISH the opportunity to present its evidence, and after DISH presents its evidence, the judge should give such evidence the attention it deserves.

    Again during a contempt proceeding, the judge only needs to determine if the new device is merely colorably different or not, such discovery is not complicated and not lengthy, but experts will be allowed to testify in such proceeding.

    If the judge after carefully listening to all sides, finds the new device mere colorably different, he can easily add all DISH DVRs that still use such new software in his injunction and find DISH in contempt of such injunction. DISH can appeal but DISH's prospect will not be good at all.

    But if the judge finds DISH's new device is more than coloarbly different, he must not issue a contempt ruling. And he must then move the proceeding out of a contempt hearing and into a new proceeding during which the issue of the new software infringement will be determined, and such new proceeding will likely take more time.
     
  6. May 20, 2008 #166 of 2549
    spear61

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    Right you are. My only comment is that some infringing is kinda like getting a little bit pregnant.
     
  7. May 20, 2008 #167 of 2549
    Curtis52

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    No they didn't.
     
  8. May 20, 2008 #168 of 2549
    dgordo

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    No they didn't.
     
  9. May 20, 2008 #169 of 2549
    Curtis52

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    Nope. Judge Folsom knew that some claims might be overturned but not all the claims. He said so. He was right.
     
  10. May 20, 2008 #170 of 2549
    James Long

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    There were many mistakes made along the way by both parties and the judge ... I would not expect the mistakes and errors to end now. :)
     
  11. May 20, 2008 #171 of 2549
    jacmyoung

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    All I can say is, as a lawyer, you sure know how to make fun at a lay person on the semantics. I for one have always had reservation about any lawyer who not only think he is smarter than the next guy, but also like to let others know about it. I am sure many take the opposite view.

    I am no lawyer, I am free to be argumentative:)
     
  12. May 20, 2008 #172 of 2549
    jacmyoung

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    And even if people refuse to consider such as mistakes, at least admit things may not turn out the way you wish.
     
  13. May 20, 2008 #173 of 2549
    Kheldar

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    Just how does one go about turning off a banana? :confused: :grin:
    That one might get overturned on appeal based on the impossibility of the request.
     
  14. May 21, 2008 #174 of 2549
    Greg Bimson

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    If the ruling by the Court of Appeals "changed the circumstances in which the injunction was based", why did the Court of Appeals "rubber stamp" the injunction and let it take full force and effect by removing the stay? The logic right here escapes me...

    Are you saying that if DISH/SATS is found in contempt, they should argue to the Court of Appeals that the injunction was worded incorrectly or just plain wrong? The time has passed for that argument.
     
  15. May 21, 2008 #175 of 2549
    jacmyoung

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    Let me try again, it is not appeals court's job to help the judge modify his injunction, the appeals court either uphold the injunction or overturn it. The court decided to uphold it, because even if the hardware never infringed, had the same old infringing software been in use all this time, the injunction would still be appropriate. Of course the old software is gone now. They did suggest parties brief on the hardware issue but the parties did not.

    No, I can not say what DISH may argue at that time. Only what DISH is saying now, that they are in compliance with the injunction, because their hardware never infringed, and their new software no longer infringes, therefore the goal of the injunction is reached. Why do you keep asking me the same question as if I may give you a different answer?

    Now of course if the appeals court does not buy DISH's argument, they will uphold the judge's contempt order, and DISH will be in real trouble if they still do not turn off the DVR's.

    If the appeals court buys DISH's argument, they should have a few options, the easiest is simply overturn the contempt order and do nothing else, and let the parties continue with their fight. Or it can stay the injunction and ask the judge to hear on the new software infringement issue then make a decision. Or lift the injunction and ask the judge to come up with something new.

    No one has to declare the injunction is wrong, the injunction has been determined appropriate based on the circumstances at the time.
     
  16. May 21, 2008 #176 of 2549
    Greg Bimson

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    But you are then suggesting the wording of the injunction is not appropriate if the software has been changed, something DISH/SATS argued once before.

    DISH/SATS had a second chance to argue the wording of the injunction when appealing the case. DISH/SATS didn't file a brief regarding the injunction. Are you now stating that if Judge Folsom issues a contempt order, DISH/SATS should appeal and then brief the Court of Appeals that the injunction the Court of Appeals let stand is incorrect?
    Because the interpretation that "the goal of the injunction is reached" doesn't make sense. There isn't any item on the injunction, nor anywhere in the proceedings, that the goal of the injunction is to have DISH/SATS stop infringement.

    I guess the real question here, is that TiVo is requesting a contempt proceeding because they feel DISH/SATS has not complied with two points in the injunction: shut down the DVR's and stop selling them. If these are TiVo's only two points, how does DISH/SATS counter those two points?
     
  17. May 21, 2008 #177 of 2549
    Greg Bimson

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    I respectfully differ. Want one example?

    Dish Network's distant network case.
     
  18. May 21, 2008 #178 of 2549
    dgordo

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    You have me completely wrong. I assure you that I don't think I am smarter than anyone. We all have different areas which we understand better than others. What I do think is that, after law school, the bar exam and several years practicing law, I see misuse of legal terms and it makes me cringe. Hell, If I was that smart I never would have gone to law school.

    Its obvious that you have done a fair amount of research as your posts are far more legally accurate on this topic then they were 4 months ago. You made a very informative point but ruined it by using the wrong word. You may call that semantics but to me that is like saying that a knockout is the same as a split decision.
     
  19. May 21, 2008 #179 of 2549
    James Long

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    At that point in time the software had not been changed. What do you want DISH to do, brief on the possibility that a year later they would have non-infringing software? We knew from later public comments that DISH was considering removing the offending code. But at the time they made their appeal argument there was no new code to speak of.

    Perhaps they should have asked for the injunction to be focused on the specific code ruled to be infringing ... it would have made it easier now. But at that point in time there was no new "non infringing code".

    Besides, an appeal is not the time to introduce new evidence. (Remember the distants case when DISH tried to introduce the settlement as new evidence?) It is a time to point out errors made by the court. The only error in the injunction was that it named products and not code or components. It is too broad.

    How so? The appeals court in that case ordered the district judge to place the injunction he wrote.

    In that case it seemed that the district court judge errored on the side of DISH ... initially putting out an injunction that was NOT compliant with the law (an injunction that required DISH to follow the law in qualifying customers for distants and cease delivery to customers who did not qualify - instead of the required "death penalty"). Later on after it was proven that DISH ignored that injunction the "death penalty" was imposed ... but only after more delay by the judge.

    In that case there was a specific permanent penalty required by law ... if one infringed to the level DISH infringed they would no longer be able to offer distants. There is no death penalty connected to this case. DISH remains free to create and sell or use any DVR that they want to create and sell or use. They just can't use infringing code (and if the court ever deals with the remanded hardware claims, perhaps they won't be able to use a component - unless the infringing portion of the component is bypassed in software).

    There is no "death penalty" here.
     
  20. May 21, 2008 #180 of 2549
    jacmyoung

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    Yes, when taken into consideration that the hardware verdict was reversed, it is reasonable to argue that the standard of the injunction should now be based on what kind of software is used. Now I am not saying the judges must buy such logic, but it is a reasonable argument to me if DISH uses it.

    There need not be one, because the purpose of an injunction is to prevent past wrong doing from happening again, not to punish the offender for past act, the damages and fines serve such purpose.

    Still the same, its hardware never infringed, and its new software no longer infringes. But because Tivo understood the logic behind such argument, they decided to be proactive and added the new software issue as the 3rd part. And also because Tivo understood it is too risky to bring back the hardware issue, they decided not to, and as a result the software issue became even more important an issue that Tivo felt compelled to bring up.
     
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