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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. scooper

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    No they can't - else their whole prosecution of the patent infringement falls apart.

    If I was the judge - I'd be telling Tivo " OK, which definition are you using for all time - there will be no changing of definitions."

    If the Patent holder can change definitions anytime they feel like it - then they can can change it to counter any / all workarounds. And that is simply not fair.
     
  2. Greg Bimson

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    In this case, I am talking about the redefining of the injunction, not the infringement. DISH/SATS is trying to confuse by redefining "Infringing Products" to mean something other than the definition provided within the injunction. TiVo is simply creating a definition that is inline with the provided definition clarifying DISH/SATS attempt to redefine.

    However, since you brought this up about redefining infringement...

    Every expert (all five; three from DISH/SATS and two from TiVo) testified under oath during trial that PID filtering met the "parse video and audio data from broadcasting data" limitation. In order to defeat this, one of the experts from DISH/SATS had to recant his testimony during the bench hearing because he felt once DISH/SATS was found guilty that what he said under oath didn't matter.

    Five experts agreed that PID filtering meet the claim. The expectation is that a panel of judges is going to dismiss those experts' testmonies and overturn a contempt ruling for continuing infringement that is simply an extension of the evidence used during trial.

    TiVo did not redefine the testimony that was used to find infringement during the trial. DISH/SATS is trying to do just that.
     
  3. jacmyoung

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    Whether E*’s interpretation is correct, or TiVo and the judge’s interpretation is correct, has not been determined by the appeals court yet. You keep jumping ahead, as if your opinion will be the appeals court's opinion.

    That is your opinion, the appeals court has not made the determination yet.

    Again this is your opinion. If the injunction is as “bulletproof” as you think, why would TiVo be forced to replace the term “Infringing Products” with something like “adjudicated DVRs” every time it was faced with that term? Because there is this 18-letter bullet hole in that injunction.

    What are you talking about? E* spent half of their time arguing they were not in contempt that they followed the letter of the injunction.

    You continue to not understand the “on alternative” argument. E* does not say the injunction is invalid, E* continues to insist the original injunction was valid, and they followed that injunction to the letter.

    But “on alternative”, even if we take TiVo’s position and TiVo’s interpretation, it can only lead to the conclusion that the injunction would prohibit design around. Since we all know and agree that no injunction can prohibit design around, for that very reason, TiVo’s interpretation is wrong. Not the original injunction was wrong, but TiVo’s interpretation was wrong.

    When you argue on the alternative, you do not give up your position, you only take your opponent's position which you do not agree with, but use that position to again prove your opponent wrong.

    E* did not redefine the terms, E* simply quoted the term. It was TiVo who tried to redefine the term buy replacing it with “adjudicated DVRs.” To disguise itself, TiVo tried to accuse E* of “redefining”, an offense TiVo was committing itself.

    If you are accusing E* of violation of the “letter” of the injunction, then show us the “letter”, don’t change the “letter”. If TiVo is forced to change the “letter” every time it needs it, then it shows how hollow TiVo’s “letter of injunction” theory is.
     
  4. jacmyoung

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    This was exactly why TiVo delayed their response to the PTO rejection to one day after the oral argument. As I said earlier, had TiVo responded to the PTO before the original deadline, which was 30 days before the oral argument, TiVo’s response would have been submitted by E* to the appeals panel as evidence.

    In this evidence, TiVo did not even dispute the PTO’s contention that the software claims required start code detection and indexing. The evidence, had it been submitted to the appeals panel, would undoubtedly add to the merits of E*’s argument, that was exactly why TiVo tried to delay it to one day after the oral argument, i.e. after the case submission.

    But it shouldn’t matter, the PTO’s contention that the software claims required start code detection and indexing, was already on file with the appeals court.
     
  5. Curtis52

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    It isn't within TiVo's power to change definitions. The court determined the definitions during claim construction.
     
  6. jacmyoung

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    Not so. Anything TiVo says during the litigation and/or the PTO proceedings can be used against TiVo because it is part of the patent prosecution history.

    I have already used one example. During the first reexamination, the PTO did not reject the software claims, the sole base was the software claims disclosed this art called "objects", which was not present in the prior art references.

    But during the trial TiVo told the court the "object" was merely a "collection of data and operations". And the courts affirmed such TiVo's interpretation. E* in turn informed the PTO of such new interpretation, which allowed the PTO to reject the software claims this time around simply because the prior art references also disclosed "collection of data and operations".

    Here is another example. During the contempt proceeding TiVo insisted that the software claims had nothing to do with start code detection and indexing, had the PTO not corrected such nonsense, and if again the courts affirm such nonsense, then later E* would be able to bring back the start code detection and indexing to its DVRs without infringing on the TiVo's patent.

    Everything TiVo says, or E* says, are on the record and if affirmed by the courts, can be used for or against them in future proceedings.
     
  7. Greg Bimson

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    The opinion of the Court of Appeals doesn't matter UNTIL the body renders its decision. The current ruling is that DISH/SATS interpretation is incorrect. That ruling has not been stayed. That ruling is being questioned, but it has not been stayed.
    And the only way to come to that conclusion is a collateral attack on a standing injunction.
    No. Wholly incorrect.
    No. Wholly incorrect.

    First, there wasn't anything within the original injunction to prohibit a design-around. There was simply an order to follow regarding a large majority of DVR's found infringing and installed in customers' homes. Once that injunction became active, the order was to disable those DVR's. Just because software may have been changed does not negate the need to follow the injunction. If anyone is reading something more into the injunction, so be it. Stating that a design-around is prohibited is a wholly incorrect conclusion.

    Second, there have been numerous citations where infringers can no longer work-around without court approval. Even in this case, there is now an injunction (stayed) that work-arounds must have court approval before implementation. So to say "that no injunction can prohibit design around" is wholly incorrect.
    I understand it fine. DISH/SATS states they followed the injunction to the letter and has been found in contempt for failure to follow that injunction to the letter. Which means the argument that DISH/SATS followed the injunction to the letter is wholly incorrect.

    What is DISH/SATS going to say? They didn't follow the injunction because it was invalid? They'd admit the didn't adhere to the injunction's terms? That is contempt.
    Really?
    By its plain terms, the Injunction, including the “disable DVR functionality” clause, can only cover “Infringing Products,” not the non-infringing technology EchoStar has now deployed. It does violence to the natural meaning of the phrase “Infringing Products” to argue, as TiVo does, that it encompasses units supplied with EchoStar’s non-infringing software.​
    Obfuscation.

    There is only one meaning to the term "Infringing Products", and DISH/SATS tried to change it.
     
  8. jacmyoung

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    Actually the ruling has been stayed, despite the fact both TiVo and the judge refused to admit it.

    Just go read the appeals court stay order, it defined "the order" to mean:

    It then clearly stated that "the order" was stayed. By plain reading of the stay order, yes the contempt finging was stayed. I know the judge did not agree, that is fine. I see a lot of disagreement between Judge Folsom and the appeals court lately, in one case the appeals court said he was "patently erroneous".

    Please show me which ones, don't just claim, show us. There was only single citation TiVo made in one case when the infringers tried to design around four times, each time was later determined to continue to infinge, only after that the district court told the infringer to obtain approval first.

    Even TiVo and the judge agreed no injunction may prohibit design around, so please at least follow their train of thought. Asking the infringer to inform and obtain approval is actually to tell them, yes, they can design around the injunction, just that they need to inform and get aprpoval first.

    We shall see.
     
  9. jacmyoung

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    In reviewing the oral argument, I noticed one very important exchange between Judge Rader and the TiVo’s attorney Mr. Waxman, which was totally overlooked, even by E* in their briefs and argument during the hearing.

    Mr. Waxman when trying to explain exactly what TiVo asked for from the “disabling provision”, he quoted TiVo’s own 2006 statement from the appendices, which said: “disable all infringing DVR functions from the DVRs.” Judge Rader followed him by repeating TiVo’s statement: “disable all infringing DVR functions from the DVRs.”

    Basically in trying to get Mr. Waxman to clarify what the disabling provision really meant, i.e. what did that “all” mean? Judge Rader got Mr. Waxman to disclose that TiVo actually had the answer back then, which said it meant “all infringing DVR functions”.

    Not any DVR functions, but all infringing DVR functions. I could hear Mr. Waxman after mentioned that TiVo’s statement, quickly tried to move on, but Judge Rader repeated that statement back to him.

    If the modified DVRs may no longer be infringing, then of course the DVR functions they perform may no longer be “infringing DVR functions”. Since TiVo clearly stated the purpose of the “all means all” was to “disable all infringing DVR functions,” I guess people can fill in the blank for me.

    I am only very disappointed of the fact E* never caught that TiVo’s statement in the appendices which TiVo made in 2006. By some luck, Mr. Waxman offered it to judge Rader during the oral argument, and it seemed the judge took notice of it, by repeating it back to Mr. Waxman.

    Of course in reality it should not matter, because the term “Infringing products” is good enough. But TiVo and Judge Folsom’s entire argument has been hinged on the “all means all”, yet no one at E* even bothered to dig up what TiVo actually said to the court back in 2006 what that “all” meant? And it took Judge Rader to get it out of Mr. Waxman, both of them did so probably unintentionally.

    That is a major oversight on E*’s part without a doubt.
     
  10. jacmyoung

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    BTW, Judge Rader also quoted TiVo when TiVo told both the district court and E* back in 2006 how to implement the "disablement provision":

    "E* can disable the infringing DVR functionality from all of its DVRs by reprogramming the DVRs through a software transmission."

    Now this was the method TiVo said E* could use to comply with the "disablement provision".

    It is E*'s contention they did just as TiVo said they could do, by downloading a new software to disable the infringing DVR functionality, after reprogramming the DVRs, the infringing DVR functions were gone.

    TiVo now says but they still have DVR functions, who cares if they are infringing or not? Well back in 2006 TiVo cared, they specifically said to disable "the infringing DVR functionality".

    Maybe TiVo shoud have "appealed" the last time to change their meaning from "the infringing DVR functionality" to "all DVR functionality"?
     
  11. Jan 6, 2010 #1751 of 2012
    jacmyoung

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    Interesting have not seen Judge Rader appearing in any of the recent appeals court rulings. Assume he will be the lead judge in the TiVo v. E* case, either he is on vacation, preparing his next lecture/trip, or he is hard at work on this case.

    I'd like to suggest TiVo prepare to sue E* for infringement by all the new TV Everywhere hardware just rolled out at the CES.
     
  12. jacmyoung

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    Not much except that Verizon just in the past few days filed for the appearances of 7 attorneys in the TiVo v. Verizon case. I guess finally both the ATT and the Verizon lawsuits are taking shape.

    Depend on the timing, if the TiVo's software claims stay rejected by the PTO, one of the first things ATT and Verison can do is to have the court stay any proceedings with respect to the software claims. If so they have E* to thank for.
     
  13. Greg Bimson

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    IIRC, The "Time Warp" patent was one of three patents where TiVo is claiming infringement. Not sure how the courts would handle that, but I have to believe that since the other two patents have yet to be challenged, the case could go on with the other two patents, and probably drag the third with it.
     
  14. jacmyoung

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    The other two patents are the "continuations" of the Time Warping patent. I am no lawyer, but maybe that means if the Time Warping patent is not infringed, the other two cannot be infringed. Correct me if I am wrong.

    I have read the other two patent claims some time ago, they both contain key claims in the Time Warping patent claims.
     
  15. Curtis52

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    Wrong thread.
     
  16. Maverickjoe

    Maverickjoe Mentor

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    It should not go uncorrected that TiVo's software claims (i.e. the '389 patent) have NOT been rejected by the USPTO, nor would AT&T or Verizon have any claim to stay their proceedings on the basis that those patents are invalid. If and when the USPTO issues a 'final' ruling, any party who has relied upon the TiVo patent (including TiVo) has the right to appeal any modifications through the CAFC and beyond. Until due process is complete the '389 patent is the law of the land. Furthermore, if the CAFC upholds the current appeal, any pending cases in the EDTX can rely upon the Markman hearings, claim constructions and judicial orders of that court. That might make for an expedient trial.:)
     
  17. jacmyoung

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    Yes they have, go read the 8/4/09 PTO's initial office action rejecting the software claims.

    No one said they could stay the proceedings for the entire patents, only that proceedings with respect to the claims that are under rejection.

    Yet as long as the claims are under the PTO's rejection, the patent owners may not have a valid complaint against any accused infringers with respect to those rejected claims, as long as the complaint has not gone too far beyond the initial discoveries.

    Please don't confuse the validity of the patent with the rejection of the patent claims. Yes until the PTO final rejection action is upheld on appeals (if the patent owners should appeal), the patent is assumed valid, but still if the patent claims are under rejection, the patent owners may not have a valid complaint against any newly accused infringers until such time the patent owners succeed in overcoming the PTO's rejection on appeal.

    I think you meant to say "if the CAFC upholds Judge Folsom's ruling". Even if the CAFC reverses Judge Folsom judgment and/or vacate his order, most of the claim constructions can still be relied on in the ATT/Verizon case.
     
  18. Maverickjoe

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    Actually, you stated "that ATT and Verizon can...have the court stay any proceedings with respect to the software claims". You missed your own point and my counterpoint - that is that there are NO claims that have been 'rejected' in the eyes of the law, nor will any claims be 'rejected' until the CAFC affirms a rejection. And that will take many,many years.:nono2:

    This is simply not true, unless you are hanging your theory on the verb "may", which is typically meant to mean "having a possibility". Sure, anything is possible, but there is NO established case law that a post-acceptance and later preliminary ex parte rejection of a patent claim has EVER been succesfully used to defer the enforcement of patent rights.:nono2:

    I am not confused at all, it seems you are confounded by the principle of due process.

    This is patently false, there is no basis in law for making this assertion and you should be ashamed for posting such a blatently misinformed or fabricated statement.:nono2:
     
  19. jacmyoung

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    Trial courts regularly stay patent infringement suits when the claims are rejected in reexaminations even though the patents are valid, as long as the court proceedings are not too far beyond the initial discoveries. In E*'s own 10K they listed no less than three cases, involving E*, DirecTV and a few cable companies, which were sued by patent trolls, most of those cases have been stayed for years because the claims have been rejected by the PTO in reexaminations at the early stages of the lawsuits, despite the fact all the patents are still valid. The patent owners must first overcome those rejections before suing people for infringement.

    As for other arguments obviously you have no intention to cite any support for your contentions other than saying I am patently wrong, you are free to say so.
     
  20. Maverickjoe

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    Your claim that "E*'s own 10K...listed no less than three cases involving E*... which were sued by patent trolls, most of those cases have been stayed for years because the claims have been rejected by the PTO in reexaminations" is misleading. Are any of these so-called cites from cases in which the patents have been adjudicated? I will guarantee you the answer is no, which makes your assertion false and misleading.:(

    Second, your lack of command of English makes it difficult to comprehend your assertions that in "E*'s own 10K they listed no less than three cases, involving E*, DirecTV and a few cable companies, which were sued by patent trolls, most of those cases have been stayed for years because the claims have been rejected by the PTO in reexaminations at the early stages of the lawsuits, despite the fact all the patents are still valid".:(

    I checked numerous E* 10k's and can not find any instances where E* referred to PTO reexaminations causing litigation to be stayed. Perhaps your poor grammer was intended to mean that they referred to cases where this may have happened, albeit in some other context.:(

    In any event, there is no case where a patent holder has successfully defended a patent through trial and after having been upheld in appeal another violater has successfuly stayed the proceedings "for years because the claims have been rejected by the PTO in reexaminations ".

    In psychotherapy terms, your confusion can be attributed to "cognitive dissodance". You wish for an outcome and bend reality to meet that outcome ignoring the plain facts and circumstances obvious to an independent observer.:)
     
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