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TiVo vs EchoStar: Echostar found to be in Contempt

Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.

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  1. Greg Bimson

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    The order was to disable. That's what was expected.

    Were the specified receviers disabled as ordered when the injunction became active?

    It was the one action that was mandatory, as ordered by the judge.

    That is the one question IQ test. Answer no, and find yourself in contempt.

    And I'm still trying to figure out where "Echostar already brought the question before the judge and he DID NOT TELL THEM THEY WERE NOT ALLOWED." Echostar never did bring the question before the judge.
     
  2. jacmyoung

    jacmyoung Hall Of Fame

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    For a five-year-old, but here is a follow-up IQ test for the adult: When you change the wording of the IQ test question, say replace the "Infringing Products" with the "adjudicated units", should the IQ test answer stay the same?

    A more challenging IQ test question that only a person with an IQ much higher than a normal 5 year-old can possibly begin to tackle.
     
  3. dgordo

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    Mostly canada, western europe and japan. The rest are highly rigged.
     
  4. Greg Bimson

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    My question:

    Were the specified receviers disabled as ordered when the injunction became active?

    I don't see where "Infringing Products" or "adjudicated units" were used.
     
  5. jacmyoung

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    The answer is yes, they did, long before the injunction became active.

    How about you answer my question for once? You wanted an IQ test, so go for it.
     
  6. Greg Bimson

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    That did not answer my question. My qualifier was "when the injunction became active". You didn't provide the answer to that.
    Too many questions. Ask the one you want an answer to, and I'll do my best, unless of course the answer has a supposition in it.
     
  7. scooper

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    And ours aren't ?

    let me tell you - everytime I've had to deal with the court system - it was rigged in favor of the other party - I have no intentions of ever going to court again - someone wrongs me - I'll take it out on them personally.
     
  8. dreadlk

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    Not a very smart thing to post on the Net! This is the exact kind of post they digg up at a later date to use against you.

     
  9. phrelin

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    Northern...
    So you think our court system is superior to say the Canadian, British, French, German, Swedish, Norwegian, and Danish systems for instance? Does that cover all the court system? Say criminal justice? Or comparing the French specialist courts like the tribunal de commerce system? Or the Swedish Patentbesvärsrätten (Patent Appeals)? Just curious.

    For instance from my viewpoint, if I were a crime victim or a poor defendant I'd prefer the the French court system. If I were a rich white defendant, of course I'd prefer to be prosecuted in the U.S. Just my opinion.
     
  10. dgordo

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    I was talking purely about federal level civil courts although I agree with your assessment of criminal courts.
     
  11. scooper

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    THat might be a bit different - most of my experiance was with small claims in Virginia.
     
  12. dgordo

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    You should have hired morgan chu. :)

    Seriously though, our court system gives the little guy much more of a chance than I have seen in any other country. Look at all the times big companies lose in court. Do you think the msft of china could ever lose a case in china?
     
  13. dgordo

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    Fair enough, small claims courts everywhere are a joke.
     
  14. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Well, the federal civil courts are pretty well run, but I'm not a big fan of juries in complex civil cases.
     
  15. jacmyoung

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    Because your question begged the question. Disabling can be done, and is usually done before the disabling order became active. The question whether the receivers were disabled at the very moment the order became active does not reflect a reasonable nor a practical objective of the order.

    But if you insist, the answer is still a yes, the DVR functions of the "Infringing Products" were disabled when the order became active.

    If you do not like my answer, that is only because like TiVo, you conveniently switched the terms, replacing the "Infringing Products" with the "receivers".

    Now back to my question, keep in mind this is a follow up of your initial "IQ test" question.

    Your IQ test question was answered by me above, my follow up is, had the term "adjudicated units" been put in the places of the term "Infringing Products" in the order, do you think my answer would have been different?
     
  16. Greg Bimson

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    Yet no one lost DVR functionality. And DISH/SATS claimed no one would lose functionality when the injunction became active. That isn't disabled.
    Not really. Technically, that was defined in the judgment and injunction.
     
  17. jacmyoung

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    As long as the DVR functions were disabled from the "Infringing Products" then the order, as it was specified, had been followed. One should not expand the order specifications to suit his needs. Therefore the only thing you should argue is, does the term "Infringing Products" mean anything?

    But wait till you read my answer below.

    I am glad you passed my IQ test.

    The fact of the matter is, regardless what term did TiVo put in the injunction to describe those 4 million DVRs in short hand, whether the "Infringing Products", or the "adjudicated units", or your "specified receivers", the outcome should not be different.

    Because by law, any short hand term to define the DVRs must describe only those that were adjudicated to infringe during the trial. That means that term must only describe those 8 named DVRs configured with the old software, because during the trial, only those 8 named DVRs configured with those specified old software were found to have infringed. That term, whatever it may be, cannot define anything more, anything less.

    Therefore once any modifications were done to them, they became different things, and since they became different things, that term no longer described them, i.e. no longer applied to them.

    That is not to say they may no longer be subject to the order. If they are only colorably different, and also are proven to also infringe by clear and convincing evidence, they are still subject to the order, including the disabling order.
     
  18. deaincaelo

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    Ecostar asked for the injunction to include language to allow them to modify the receivers. They didn't get it. They also didn't get the ability limited like they do with the current injunction. It might be argued that the judge need not spell out this prohibition. On the other hand, its hardly fair to prohibit someone from doing something that they asked you about without telling them about it. . . and then act surprised when they do it.

    Maybe in reality, but this is the east district court of texas. That's about as far from reality as you can get.

    Echostars legal strategy is that the Infringing Products have all been disabled, recycled, and replaced by the new software. The new software is also Imaginary Property. If they had been replaced by, say VIP receivers, I doubt anyone would be having an issue with this.

    Tivo's remaining claim is Imaginary Property. No device exists that embodies it. You must go that far down the rabbit hole to remain consistent in this case. If you lived in a reality that respected existence as a pre-requisite for patentability or enforceability, you would have had to throw the case out 2 years ago when only claim 32 remained. Or at least reversed and remanded it in whole.

    So now you have precedent within the same case that Imaginary Property can have its rights enforced just like real property. That means that if the judge is to apply the rules consistently he must treat the reimangeneered "new devices" just as valid as a 612.

    Does that take the bite out of the injunction? No. The 612 and the Imaginary DVRs can still be held in contempt under the colerable difference clause. There is no reason to treat these Imaginary Properties differently. However, he did. I think it displays a bias that is extrajudicial.
    Maybe I'm wrong. Maybe I'm just PO'ed at the whole patent system that threatens inverters and taking it out on folsum.
     
  19. Greg Bimson

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    No, because the disable period as spelled out in the injunction was until the patent expired. The DVR functions are still enabled, so that is a violation, unless the Court of Appeals or SCOTUS decides to make new case law.
    That is the entire point. Joe Blow's five year old DP501 was adjudged as an infringement. The court issued an order to disable almost all of those units. Were those units disabled for the life of the patent when the injunction became active? They aren't "different units", as those units were defined in the injunction already.

    DISH/SATS can now make units that were adjudged as infringements so that they no longer infringe? Let the court know that. Even Judge Folsom was astonished to find that DISH/SATS didn't let him know about a possible workaround.
    Yet according to the definition within the injunction, those are still "Infringing Products".

    Remember, DISH/SATS argument about the disablement provision is two-fold:
    1) Infringing Products means something other than the eight models of DVR enumerated and adjudged as infringements. However, "Infringing Products" was defined within the injunction, and DISH/SATS cannot argue (or shall I say won't win an argument) that "Infringing Products" means products which infringe.
    2) The disable provision of the injunction was followed, yet no DVR functionality was removed as the injunction became active.

    Those are DISH/SATS only two legal arguments, neither of which hold any water. DISH/SATS is hanging their hat on that they no longer infringe, hoping to get out of the disablement provision. But that road is frought with peril, as the arguments used to prove infringement during the trial were simply used to prove that the modifications aren't colorably different and still infringe the two patent claims.
    I agree completely, and have said so from the beginning. A receiver swap would worked around the disable provision.
    There isn't one claim; there are two. They are claims 31 and 61, which provide for a "process" and an "apparatus". Therefore, this isn't about "Imaginary Property", but a receiver.

    Edit: This dispute is not a two-party process. There is a third party that has a vested interest to make sure they get the ruling correct and be able to apply that ruling to future disputes.
    Does anyone think the courts would look kindly on a party that tries to redefine court terms and ignore orders? Do the courts want to have numerous disputes and constant re-evaluations of inringement over units that were found as infringements? The courts will make sure that the process is followed for the infringer to receive their get-out-of-disable free card.​
    Even Echostar's General Counsel knew this a few years earlier:
     
  20. jacmyoung

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    Not enabled, nor reinstalled in the "Infirnging Products".

    The entire point is, no case law had ever permitted an injunction, regardless how many provisions in it, to prohibit any acts that are not infringment of the patent. To the contrary, to prohibit the act (the act of using a non-infringing DVR) that is non-infringing, is to set a new standard.

    The law is very clear, in a patent infringement case, the only purpose of an injunction is to prohibit an act, if such act is an infringing act, no more, no less. That is why what specific terms you put in an injunction is not a determining factor, nor what you think what the order is really intended to do or not do. Becasue the controlling patent law has already spoken on what an injunction should be interepreted, as the appeals court said:

    TiVo is saying, their injunction can prohibit the act of using the DVR functions by the 8 named DVRs already with the end users, even if the act of using the DVR functions is no longer an infringing act, because according to TiVo, and the judge agreed, that this injunction is special, has special intent if you interpret it in their favor.

    When the appeals court begins to interpret this injunction, they must do so de novo, meaning disregard any previously stated interpretations, but to interpret it all over again on their own, and naturally, the appeals court's interpretation should not overule their own above standard I have in the quote, and the only way it can happen is to agree with E*.

    That is correct, even if you believe 1000% that your interpretation is correct, the appeals court still cannot adopt yours, because doing so will have violated Rule 65(d), the Statute of the Congress of the United States.
     
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