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Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.
At one point they hinted they may hand down a decision in November but that seems optimistic to me.
That is wishful thinking. Joe Blow's four year old 625 was declared an "Infringing Product", and with the clear and concise reading of the injunction, has been ordered disabled. Placing some modified software on that receiver didn't change the defintion.
I see you've flip-flopped on the meaning of "Infringing Product", and the interpretation of that phrase still doesn't match the definition of the court.
Where is the flip flop? Be specific, otherwise you are just throwing accusations around like TiVo.
I enjoy this thread.
The case, as described, is complex. But if a one can escape being found to have acted contemptuously by simply changing the software without giving the judge a chance to review the change first, just seems wrong.
dish/sats and the judge say the software is changed, and even not colorably different, then all dish has to do is say, nope we changed the software again, etc. haha!
what a joke the legal system is if this stuff works. (please don't ask me to define 'works.')
jacmyoung's and dish/sat's arguments are some of the finest examples of sophistry i've ever had the pleasure of reading.
Two different positions, and constantly adding words to a definition that stands on its own.
The reality is that the term "Infringing Products" was defined as the eight models of DVR found infringing. All but 192K of those enumerated units in use by customers were captured by the disable provision.
Changing the software does not make the "Infringing Products" a new device, nor does it change the definition of "Infringing Products".
Heck, just to be clear, Joe Blow's four year old 625 was evaluated and DISH/SATS was found in contempt TWICE for the exact same unit: failure to disable and continuing to infringe.
You obviously have not enjoyed reading enough. E* has a perfect explanation of why they should not have to seek “pre-approval” of a new software modification, and they are in fact contesting the “pre-approval” provision in this amended injunction.
The reason is simple, if an infringer must seek pre-approval, it means the old products will continue to infringe and not allowed to be used, while the modified products cannot be rolled out until such time the court completes its review of the modification and decides that the modification is a go. We all know how long usually it takes for a court to review anything. It took Judge Folsom over a year to decide if the modification was infringing or not. Not to mention the patent owner can try to delay the pre-approval process too and drag it on and on.
If the infringer should seek a pre-approval before implementation, who should be responsible for the delay in pre-approval and delay in modified products from rolling out? Can the taxpayers afford to pay such lost profit due to the lengthy delay of the rollout of the modified products? Are the courts ready to accept liability for delaying products rollout?
The only reasonable answer is not to request the infringer to seek pre-approval, rather try to determine later if the modification was non-infringing. Because there will be remedy by the court if the modification still is found to infringe, the patent owner can receive damages plus interest, lost profits plus interest, even enhanced damages and attorney cost.
The same position, only one is based on more limited condition than the other.
E* is saying, the term “Infringing Products” only defined the 8 named DVRs that infringed, but if later the 8 named DVRs were modified and no longer infringed, the term “Infringing Products” can no longer define them because they no longer infringe, or to say the later DVRs are no longer defined by the term.
I am saying, the term “Infringing Products” only defined the 8 named DVRs that infringed, if later the 8 named DVRs were modified and became different DVRs (as confirmed by Judge Folsom), the term simply cannot apply to the different products anymore, or the different products can not be defined by that term. Of course no infringement is even better, but is not necessary.
Where is the flip flop? Again be specific, show me where in the above is evidence of a flip flop?
You do realize that the eight models were evaluated by Judge Folsom for "continuing infringement"? They didn't become "different DVR's". They are the same unit targeted by the disable provision which may now operate a bit differently, instead of not operating as a DVR at all.
Then why did the judge say they were only colorably different, which is an admission that they were different, isn't it?
Either they are different or they are the same, make up the mind.
Here, instead, Judge Folsom says, if in his contempt proceedings, there is a question whether his injunction might be too broad, it is the infringer’s job to clarify it before the contempt proceedings, i.e. during the last appeal. If not, that is just too bad.
The quote from the appeals court above clearly conflicts with Judge Folsom’s argument. The appeals court said, if during a contempt proceeding (which is the case here) it may appear that the injunction is overly broad, it is the district court’s job to interpret it in a way that conforms to the rules, not to interpret it in a way that may violate the rules.
Most certainly the responsibility is squarely on the district court, not on the infringer, to interpret its own order in a way that does not conflict with the rules, regardless what had happened before, whether E* had done this, or had not done that, none of such is relevant when it comes to how Judge Folsom should have interpreted his order during his contempt proceedings.
He simply should not have interpreted his order that had resulted in a conflict with the rules.
Just because they may be different doesn't mean they aren't Infringing Products.
The order told DISH/SATS to disable DVR functionality within the "Infringing Products" for the life of TiVo's Time Warp patent. Just because a modification would exist, the removal of DVR functionality, does not mean they are no longer "Infringing Products". The model DP-625 which has DVR functionality was supposed to be disabled for the life of the patent, i.e., the modified DP-625 without DVR functionality (a non-infringing product) would still be within the scope of the injunction until the patent expires.
DISH/SATS argument centered around the fact that "Infringing Products" must be infringing, and their change made them non-infringing. DISH/SATS never did state because they changed the software within the eight adjudicated models (i.e., "Infringing Products"), those units no longer exist. It was implied in their argument, but they never did state it. I'd have respected that argument.
Correct, but don't tell me just because they are only colorably different they must still be Infringing Products. If this is the standard, there goes out KSM--the rule of law.
I know very well your point on how to interpret "Infringing Products". But as the last quote I posted from the appeals court, when you try to interpret the injunction during a contempt proceeding, including how to interpret the "Infringing Products", you are required to interpret it so that the outcome conforms to the rule of law, i.e. your interpretation shall not result in finding a violation of an injunction without infringement.
We can of course debate what are the meanings of the rule of the law, or even what is the correct meaning of the injunction, but in the end if you refuse to obey the rule of the law, you fail, because the rule of the law is above your injunction and above what you believe is the correct interpretation of your injunction.
When there is conflict between the injunction and the rule of law, the judge must fall back on the rule of law, not on what he thinks is the correct interpretation of his injunction.
Earlier the most recent TiVo v. ATT/U case and the timing of it was briefly discussed.
Another explanation of the timing of the suit may be that TiVo considered the likelihood of the PTO rejecting the software claims in their final action. The PTO's final action (whether rejecting or affirming) should come down in about a few months.
If the software claims are rejected in a few months, ATT/U can ask the court to suspend the proceedings related to the software claims, TiVo will then try to argue that the case is "well in advance" so not to suspend the software claims proceedings.
TiVo cannot afford not to have the software claims in the lawsuit, because it is evident from this case, their hardware claims are much narrower therefore it will be more difficult to prove infringement with only the hardware claims standing.
Of course there are two other newer patents, one of them discloses the art of the multi-room viewing (MRV) which also heavily relies on the time-warp patent (the one in this TiVo v. E* case). It makes sense that TiVo goes after ATT/U because ATT/U aggressively promote their MRV. Though they must first infringe on the time-warp patent in order to infringe on the MRV patent.
The other new patent discloses an art of correcting the inaccuracy of the stop and replay locations in fast forward and fast backward trick plays, caused by slow remote response time. We know slow remote response time is widespread among the Motorola and the DirecTV brands of the DVRs, so it makes sense that the ATT/U DVRs (made by Motorola) may be using some kind of the same art that could infringe on the patent.
This much seems clear, E* does not do as much MRV and has little issue with slow remote response
I did briefly use the ATT/U service after going back to DirecTV. My experience was there was nothing done by Uverse to correct the inaccuracy of the stop locations during trickplays. In other words, the stop locations were inaccurate. But who knows, may be they have improved on that front, and therefore might have infringed as a result.
Both new patents however are continuation of the time-warp patent. I know for sure the "MRV patent" cannot be infringed unless the "time-warp" patent is infringed first, but don't know if the "correction patent" can be infringed without the "time-warp" patent infringed first. By simple reading of the "correction patent" it seems it can be infringed on its own.
I'd need to go back and review a few things, but the gist of it will be here:
I recall that TiVo argued that KSM need not apply to the originally adjudged devices. However, Judge Folsom did apply it.
Judge Folsom simply ruled that the orignally adjudged devices are "Infringing Products", and put DISH/SATS in contempt for ignoring the disable provision. Judge Folsom also recognized that the modifications to those receivers still make the receivers infringe, and put DISH/SATS in contempt for continuing infringement.
Sure, KSM may or may not apply, but KSM does differentiate between the adjudged and the accused devices.
Only if the interpretation of "rule of law" applies to what you believe is a misapplication of a standard. I've said before that it is possible that KSM does not apply to a disable provision. Nowhere is it stated KSM is controlling case law for adjudged devices. Nowhere is it stated that KSM cannot be applied with the normal test for finding contempt of an injunction.
It all boils down to how Joe Blow's four-year old DP-625 is addressed. Judge Folsom said as of 8 September 2006 that it and every other DP-625 were infringements, and ordered those receivers disabled.
Changing the software does not make those devices unadjudged. It certainly doesn't make them a different unit from a DP-625 that was installed in a customer home as of the date of the order.
I honestly think that Judge Folsom punted the question whether or not one standard should be subservient to the other.
I have no problem with the judge using colorable difference. My point is just that the hardware by itself is not prohibited, nor is re-using the hardware in a different device. It's the devices as a whole that are prohibited.
now you have the 501-r's. No one here is saying that a newly manufactured 501-r isn't a new device. However, joe blow's identical 501-r is not until it's taken back to the factory, torn apart, and put back together identically. I could say that I did so using VooDoo and it would be undisprovable. This smacks of arbitrary distinction and spectral evidence to me.
I understand the court doesnt really care about reality, but I read the patent and I've torn apart a VCR at least once in my life. It's the same generic process as interpreted. No one has provided a technically sound argument to the contrary.
Yes, KSM is controlling case law for the "accused devices" and the DVRs with the old software were "adjudged devices" but the DVRs with the new software are "accused devices".
If the district court disagrees, then as I said, don't do the colorable difference analysis. A colorable difference analysis is based on the recognition that you actually have the "accused devices" that must be compared to the "adjudged devices".
As I said over and over, a contempt "on the face" should have come down over a year ago, and the appeal would have already come to an conclusion. Though I firmly believe it would still be struck down by the appeals court to uphold the same rule of law, at least the contempt decision would have been true to its claim.
But the units ordered disabled are both the "adjudged devices" and the "accused devices". They were adjudged as infringements and again accused of infringing due to the modifications.
It may not have been one or the other, but both. That is how Judge Folsom ruled. Whether or not the colorable difference analysis needed to be completed on the "adjudged devices" remains to be seen. However, my gut tells me that had Judge Folsom found the "adjudged devices" to no longer be infringing, the injunction would have then been modified to exclude those devices, and DISH/SATS would have been found in contempt for failure to disable from the time the injunction became active until the time the "adjudged devices" were found no longer infringing.
Edit: Besides, after DISH/SATS claimed a modification of the "Infringing Products" as a defense against contempt, TiVo simply asked the courts find that the modification is merely colorably different and still infringing. The "prima facie" violation then wasn't the only contemptuous issue on Judge Folsom's plate.
I agree with that point, although others would disagree.
This is all about the way that DISH begged for the injunction to work. Tivo had every right (and wanted) for all the infringing devices to be removed for the customers homes (which of course makes a disable provision unnecessary) but DISH convinced Folsom that they were able and willing to disable dvr function without removing the devices from the customers homes.
You're not the first to make that claim, and you may be correct, I however am in no position to make that judgment.
Let's make sure we understand there are two separate issues here.
The issue we have been debating is one which the modified DVRs are "accused devices" and the DVRs with the old software were "adjudged devices". The question is whether the use of the modified devices violates the injunction regardless if they are compared to the old DVRs and found to be only colorably different and still an infringement by clear and convincing evidence, or not.
The answer is no, you cannot do that.
Next, if the court correctly takes the steps to do the colorable difference and infringement analyses, and finds that the accused are only colorably different and continue to infringe by clear and convincing evidence, can the use of (or not disabling of) the devices be a violation?
The answer is then yes. There is never any dispute on this second one.
Of course since Judge Folsom has already adjudged those accused devices, now the modified DVRs have become adjudged devices. The question on appeal is then whether his findings (only colorable difference and still infringement) are correct or not.
We had debated on the last question too, but the recent debate was not about the last question, rather the first issue.