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Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.
Charlie didn't want to pay TiVo?
Sounds like we should have a decision in the next 2 weeks. :righton:
Nah, TiVo felt that DISH/SATS had simply used their patented process and method, pausing, rewinding and fast-forwarding while recording. And surprsingly enough, a jury agreed, a judge agreed, and a panel of judges agreed that the patent was infringed.
What did I miss that leads you to beleive this?
Not surprising at all if you know the history of that district. What was surprising was the appeals court overturned the jury's hardware claims verdict, i.e. half of the jury's verdict were overturned, that was not easy.
Because the clock is still ticking?
As it continues to tick and tick, the prediction of a decision in the next two weeks can only get better and better
I don't mean to throw out the "semantics" card here, but as we know the law is all about sematics...
The verdict may have been overturned on the finding of guilt regarding the Hardware Claims, but it wasn't because the jury did something wrong. DISH/SATS successfully argued that the claim construction defined by Judge Folsom was not correct, and upon review and correction by the Court of Appeals, the jury's verdict had to be set aside.
This contempt issue is different, as claim constructions are not reviewable. Those were set in stone once the appeals from the trial were exhausted. What can be reviewed is whether or not the application of a piece of technology meets the claim construction, i.e., if the PID filter does meet the "parse video and audio data from said broadcast data" limitation.
Thats what a clerk told someone.
Who is to say Judge Folsom cannot make another mistake?
The PID filter not only has to parse, but to parse "audio and video data", and in addition, it also has to temporarily store those data. Did Judge folsom read the claim itself?
TiVo just filed their response to MSFT’s motion to intervene in the TiVo v. ATT case. TiVo basically anticipated that MSFT would likely be allowed to intervene, only that TiVo is requesting:
1) MSFT and ATT are treated as a single party in motions, discoveries, etc. to save TiVo cost.
2) MSFT does not use the grant of intervene motion to try to move the case to N. CA.
I found it interesting TiVo is so obsessed about keeping everything in the E. TX court. They did not like E*’s case filed in the DE court, nor do they now like the case MSFT filed in the N. CA court. They don’t seem to like any of their cases tried outside of this E. TX court, despite the fact Judge Folsom had dragged things out for them for years in the TiVo v. E* case.
Keep things going in this E. TX court seems the preferred game for TiVo.
Although in my view, TiVo’s fear that MSFT will try to move the case to N. CA was unnecessary, because MSFT actually filed a countersuit against TiVo in the E. TX court, i.e. the declaratory judgment suit, asking the court to attach it to the TiVo v. ATT case. Correct me if I am wrong, if you file a case in the court as a plaintiff, in a forum that is preferred by the defendant also, it would be strange to later try to move it out of this court.
I was under the impression that MSFT was asked by AT&T to intervene in the case TiVo filed in East Texas against AT&T and VZ. I don't know if TiVo countersued in East Texas.
About a week or two ago, MSFT filed a patent infringement suit against TiVo in Northern California, for infringements of completely different patents. So technically, not a countersuit in Northern California, but another infringement issue somewhat related to a DVR just like the case in East Texas.
So I guess the question here is did MSFT actually countersue in East Texas, and if yes would they attempt to hijack the litigation from East Texas to Northern California? TiVo obviously doesn't want that to happen.
Judge Folsom may have made a mistake. DISH/SATS made a much larger one if that is their defense...
If DISH/SATS says the only difference between the 5XX DVR's with old software and new software is that the newer software version of the receiver no longer meets the claim limitation "parse video and audio data from said broadcast data", that means the tacit admission that the rest of the limitations are met.
After all, by use of the colorable difference test, one simply uses the old version (found infringing) to adjudge the new version by only testing the differences. Since DISH/SATS didn't say that the new version is missing the "temporary storage" (or whatever you are calling it) limitation, it can only be implied that the limitation still exists. No evidence was produced to the contrary.
The lawsuit filed by MSFT against TiVo in N. CA has nothing to do with DVR functions, rather how TiVo uses the technologies to allow online ordering of products and VODs.
The “countersuit” I mentioned was MSFT’s declaratory judgment suit against TiVo in the E. TX court, much like the E*’s declaratory judgment suit currently pending in the E. TX court. Once MSFT filed such a suit against TiVo in the E. TX court, there is no good reason for MSFT to later try to move the case out of the E. TX court because both sides obviously has chosen the same E. TX forum for the DVR patent case.
I will agree with you that during the contempt proceeding E* almost entirely focused on the “parse video and audio data” (i.e. analyze audio and video start codes) part, which I have said several times that was their weak point, they should have also pointed out that “temporarily store the audio and video data” part, and the “extract”, “convert”…parts in later steps, which they no longer perform either.
However during the appeal, they have clearly cured that weak link, remember they asked TiVo to fill out the blanks in 10 questions, each was necessary element to meet several steps of the claims, TiVo responded by simply saying you go look for the elements in that chart. Instead, TiVo must prove by clear and convincing evidence that each and every one of those 10 elements is still present in the modified DVRs. E* said they were no longer there, TiVo cannot just say hey they are still there, you just have to go look for them for yourself. It is not the appeals court job to look for them for TiVo, rather Tivo’s job to prove they are still there, by clear and convincing evidence.
The appeals court must review evidence and arguments, including anything new in the appeal briefs by both sides, without considering Judge Folsom’s opinions.
E* focused on just one element in Judge Folsom’s court, that should have been sufficient, but I agree, and said several time before they did not try hard enough. I continue to wonder why? Was it simply a mistake by E*’s lawyers? Or was it that the E* lawyers did so to keep the case going and keep the money flowing in? Or could it be Charlie’s strategy all along since he had determined that he could not possibly win in front of Judge Folsom because the judge clearly wanted E* to license from TiVo. If so Charlie and his lawyers could have decided to reserve more arguments during the appeal, in front of the appeals court that is less biased, in that case TiVo would not have the support from a judge who is clearly biased in TiVo’s favor for a license deal, TiVo must counter those new arguments on its own without any favorable opinons from Judge Folsom. In my view TiVo had failed to address those 10 elements E* now is saying they no longer exist.
Anything is possible.
Actually, here is the problem I have with the above statement:
There shouldn't be any new evidence nor arguments within the appeal. In front of the appeals court, one tries to find fault with procedure or an erroneous application of law within a decision. The Court of Appeals is not the place to "retry" the case.
What doesn't help is the fact that the workaround was applied to the DVR's that were admitted and reviewed by the court, adjudged as infringements and ordered to have their DVR functionality disabled. DISH/SATS had to defend that they were no longer infringements in order to attempt to skirt by the disable clause of the injunction As you said, they didn't try hard enough AND they are now attempting to introduce new arguments in front of the Court of Appeals as with the finding of contempt they realized they didn't argue those points in front of Judge Folsom correctly.
I agree that anything is possible. It is very possible that the Court of Appeals feels that a closer infringement examination should be completed but also reinstates the old injunction because the formerly admitted receivers must have their DVR functionality removed while that evaluation takes place.
Of course there can be, as long as they were submitted before the case submission, which happened after the oral argument, and as long as parties were briefed properly and given proper chance to respond.
The PTO’s rejection of the software claims came after Judge Folsom’s ruling, it is now evidence accepted by the appeals court. If you were correct, the appeals court simply could not have accepted the new PTO evidence.
As far as new arguments, as long as they are based on the same evidence, as long as parties are given proper chance to respond to them, of course they will be reviewed. If one party believes the new evidence or argument should not be part of the review, they can oppose them, which TiVo did in the case of the PTO evidence, but failed.
The appeals court is the place to retry the contempt finding, determinations of colorable difference and infringement by the modified DVRs, else they would not have called it a “de novo review”.
The Judge Folsom’s final judgment (damages, etc) and amended injunction will not be “retried”, rather reviewed for abuse of discretion.
They cannot possibly reinstate the old injunction, it had been replaced by the amended injunction, i.e. the current injunction, which allows design around by the “inform and approval” provision, as long as DISH informs and obtains approval for design around. DISH is following the current injunction to the T, there is no violation of the current injunction.
The appeals court will however decide whether to reinstate the current injunction or not, since it is currently stayed. They just cannot reinstate the old injunction because it no longer exists.
BTW TiVo just amended its case against Verizon today, adding two Verizon affiliates to the case. I guess no one has decided to settle yet All eyes are on TiVo v. E*.
Some of you may recall a few month ago I talked about one of the TiVo patent applications called "Digital Video Recording System" (the DVR patent app) filed in 2003, which is a "continuation" of the "Multimedia Time Warping System" (the Time Warping patent) patent related to this TiVo v. E* case.
The DVR patent app had been rejected three times since 06/08, the latest of which happened in 06/09. Yesterday the PTO issued the 4th non-final rejection of this DVR patent app.
I said back then the DVR patent app read almost identical to the Time Warping patent in both the hardware claims and software claims. The fact the DVR patent app continues to be rejected gives rise to the likelihood that the Time Warping patent may be rejected on the same grounds, because the rejection was based on prior patents before the Time Warping patent.
Below is a copy of the latest PTO non-final rejection of the DVR patent app., if anyone cares to read it, you will notice it reads like reading the Time Warping patent. What that means is, if this rejection continues to stand, it can be used by other parties to try not only to reject the software claims (which currently stands rejected already) but also the hardware claims in this Time Warping patent:
Finally both TiVo and E* had reached an agreement which was filed yesterday!
Before anyone gets too excited, they only agreed on how much the attorney fee and cost TiVo incurred during the contempt proceeding, which is $5.8M. E* continues to appeal the decision of the award of such cost.
This agreement sure saves a little bit of Judge Folsom’s time and our tax money, since he no longer has to spend the next three months to resolve the issue for the parties.
On another related issue, there are a few analysts' speculations on why TiVo has run out of stock on their HDDVRs to sell, the guess is they are planning on rolling out the new generation of DVRs. But TiVo never said a thing during this CES last month about any new gears, also TiVo's CEO Rogers said that people should consider TiVo as a DVR company past history.
I am not saying those analysts were wrong, I only wonder if those analysts ever took the above two facts into consideration when they made their predictions?
BTW, did I mention a few days ago Rogers were awarded 60K TiVo shares, and sold 22K shares of it right the way? I know there can be many reasons to sell shares, but at this very moment when the appeals court ruling is "imminent" and the stock can go to $18? For some reaon I think this is a lot similar to a week ago when the TiVo execs filed a new "poison pill" for themselves in case of a "change of control" and guaranteed their full pays no matter how TiVo would perform afterwards.
I know this may sound strange, but for some reason I begin to feel that some of you are correct that Charlie and TiVo execs are talking and preparing for something to happen after the ruling, only that the TiVo execs are busy taking cover for such outcome, Charlie is just sitting there comfortably waiting for it to happen.
I can be wrong of course.