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Tivo vs EchoStar ... September 4th Hearing (w/transcript)

Discussion in 'General DISH™ Discussion' started by James Long, Sep 4, 2008.

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  1. Sep 15, 2008 #761 of 1182
    nobody99

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    No, they actually can't. The were also labeled with that orange sticker.

    I really don't understand why this is so difficult for you. If it was already manufactured, it gets a bright orange sticker. So at the time of the decision, there were a fixed number of already-manufactured receivers that got stickers. That number never changes - let's say its 3.2 million. Most of them were already placed with customers, some were sitting in a warehouse. Nevertheless, they all get orange stickers.

    Let's say that DISH changes the manufacturing process so that it loads new software directly on the hardware as it's being manufactured. It gets boxed up and labeled as DishPlayer 522a. TiVo would need to file a new contempt motion on these receivers, and they don't get an orange sticker. The "more than colorably different" test that jacmyoung loves to misquote comes into play. Lots of discovery comes into play. But these receivers would not be held in contempt until (and if) the determination was made that the new software was in fact more than colorably different.
     
  2. Sep 15, 2008 #762 of 1182
    Curtis52

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    It's the same legal principal as a plaintiff saying that a defendant is continuing to sell an enjoined product in violation of an injunction ordering them to stop. It happened in KSM and StarBrite. The rulings were that it depended on whether there was more than a colorable difference.
     
  3. Sep 15, 2008 #763 of 1182
    Greg Bimson

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    Yet those cases only ever applied to enjoining sales of a product never before adjudged. The accusation by the patentee is always on a product being sold, and the motion is denied if the modification is more than colorably different

    In this case, the disable order is attached to devices found to infringe. And TiVo is not accusing DISH/SATS of infringement. Infringement of those devices is not in question. The modification of those devices is, when there is an order stating they are to be disabled.

    And again, modifying the infringing devices so they are disabled (and definitely not infringing) does not remove those devices from the scope of the injunction.

    It's simple, really. If one does not apply KSM or StarBrite to adjudicated devices (as neither KSM nor StarBrite did), then contempt will be found.
     
  4. Sep 15, 2008 #764 of 1182
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    True. That is the category of receiver DISH was trying to protect when they attempted to get the injunction limited to allow new DVR software on existing non-placed products. DISH did not prevail ... any manufactured product regardless of if it has been placed or not can be a "Infringing Product". (And the injunction SPECIFICALLY prohibits placement of these models without the DVR functionality disabled).
    Following the other cases, yes. A contempt motion based on the current injunction would be filed by Tivo claiming the 522a is either the same product or one only colorably different than one of the products listed in the injunction.
    The 522a product could be held in contempt if it is determined they are only colorably different. If the court rules that the 522a is more than colorably different than a 522 then a new trial would be needed to prove that they also infringe. It would be unlikely that the question of 'colorably different' would be resolved without determining infringement, unless the products were different enough (eg: 522 vs 622) that they were more different than the same.

    "Only colorably different" must infringe, otherwise the new product is more than colorably different.
     
  5. Sep 15, 2008 #765 of 1182
    Curtis52

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    That's not what the plaintiffs said. The plaintiffs said that enjoined products were being sold in violation of the injunction. You are looking at the final outcome. If this case gets appealed, someone someday may be saying the same thing as what you are saying about this case .
     
  6. Sep 15, 2008 #766 of 1182
    CuriousMark

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    Curtis52,
    Haven't some cases in the past required that infringing products be recalled and/or destroyed. Aren't these specific units as modified by the injunction to not function as DVRs be more comparable to destroyed or recalled infringing products than to new sales?

    First, have products in the hands of customers been recalled in past cases? If so, was there ever a case where these recalled parts were reworked into non-infringing configurations and resold? That seems like the only past history that would closely match what you are calling for here. The only difference being that the change was applied without the recall and reselling steps.

    If they are more akin to destroyed products than new sales, it seems to me that contempt would have to be found for not having done the equivalent of demanded destruction.
     
  7. Sep 15, 2008 #767 of 1182
    jacmyoung

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    In Safety 1st, the Bouncenette products were all enjoined.

    On contempt, Safety 1st told the court but there were some Bouncenette products that had a modified part, BTW, we did send the stores a letter notifying them some of those Bouncenette products already on the shelves, and had a modified part, then should be called 43000C, or something like that. Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C. Safety 1st only told them in that letter a change was made after the injunction was in full force.

    Now according to Greg that was why Safety 1st avoided a contempt.

    So my question is, had DISH sent out a new model sticker to each of the DVR owners and had them slapped it on the DVR, would that have allowed DISH to avoid a contempt?

    Let me answer it for you, no! No one may avoid a contempt by simply do a name or model # change, many infringers had tried such trick, and it never worked. Name change and model # change are only colorable, such modification is in bad faith.

    The reason Safety 1st got away with a contempt was because of that modified hardness.

    The reason DISH will avoid a contempt will be because of that modified software.

    The reason the infringer in the StarBrite case avoided a contempt was because of that modified "internal formulation", despite the fact the products by their names were enjoinded.

    In both safety 1st and StarBrite, the clear letter of the orders were violated. If one cannot accept that, then there is a difference of logic used here.

    I hope no reasonable persons will continue to insist the clear letter of the orders in the Safety 1st and the StarBrite cases were not violated.

    They both were violated, period, and yet neither of them were in contempt.

    That is the bottomline, continue to find other excuses is not helpful because in front of us lies the same question, if DISH had violated the letter of the order, is there anyway to still avoid a contempt?

    The above case law says yes, as long as you do not infringe anymore.

    Not to mention in this case, the judge had clearly indicated the possibility that he could find DISH actually in complinace of his order. He kept asking TiVo's lawyer what if I did not find DISH in violation on the face? What did that leave you?

    You think he was just playing with TiVo's lawyer for some fun? You think judges make assumptions that they don't think that have the possibility to be true in their court rooms all the time just to toy with the parties? For what? To make judges themsleves look bad and unfair?

    How may the judge find DISH in compliance of the letter of the order you ask? Adopt DISH's interpretation of the order:

    "The DVR functionalities" stated in the order, must be those under the old design, tried and found infringing during the trial.

    "The DVR functionalities" stated in the order, can not possibly be construed as "any DVR functionalities" under any design, or under a new design.

    And since DISH did disable the DVR functionalities under the old design, and replaced them with the DVR functionalities with the new design, the DVR functionalities under the new design must be tested by the colorable difference test.

    Exactly the same way Safety 1st replaced a part in the enjoined products, and exactly the same way the infringer in the StarBrite case replaced the "internal formulation" in the enjoined products, DISH replaced the internal DVR functionalities of the enjoined products.
     
  8. Sep 15, 2008 #768 of 1182
    James Long

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    Liar liar pants on fire. :rolleyes:
    "On August 28, 2003, on Fisher-Price’s motion, the court entered a permanent injunction(the “Injunction”) prohibiting Safety 1st from “making, using, offering for sale, selling, licensing, importing, or otherwise distributing in the United States the following products: (a) the ‘2-n-1’ Bouncenette, including model numbers 43002, 43002A, 43006, 43006A, 25006, and 25105... Fisher-Price ​
    The Bouncenettes were not ALL enjoined, only the specific models of Bouncenette were named. Just like in the Tivo vs Echostar injunction where not ALL DVRs were ordered disabled, only the specific models determined by the court (adjudicated) as being infringing.
    The record is clear for those not guessing about the case. :rolleyes:
    Greg can speak and has spoken for himself. Those that have understood his words see where he points to the lack of infringement (a colorable difference) of the C products being the reason why contempt could be avoided.
    So why did you suggest relabling so many months ago? Playing devil's advocate? Just wanting an argument?
    When the question becomes infringement, perhaps. But that's not the question in Judge Folsom's mind today. DISH flagrantly disregarded an order of his court. He either has to backpeddle and say that his injunction did not mean what it said or fall victim to the Jedi mind trick of "the DVRs were magically replaced by other DVRs in secret" without notifying the court until more than a year later.
    I just wish one unreasonable person would note the difference in the injunctions and the Motion for Contempt that is pending.
    BTW: Who said they were not in contempt? That could be another indicator of the outcome here.
     
  9. Sep 15, 2008 #769 of 1182
    Greg Bimson

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    Still looking for:

    "BTW, we did send the stores a letter notifying them some of those Bouncenette products already on the shelves, and had a modified part, then should be called 43000C, or something like that"

    "Despite the fact if the stores just looked at those Bouncenette products already on the shelves they were not called 43000C."

    "Safety 1st only told them in that letter a change was made after the injunction was in full force."
    The above is why Safety 1st avoided the contempt charge on the 43002C model. Not because of a simple letter change, but because the product was redesigned. It could have even been redesigned before the injunction was in full force and effect; the restraining of sales did not apply to that product.
     
  10. Sep 15, 2008 #770 of 1182
    jacmyoung

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    Why not? The order prohibited the sale of the Bouncenette products already on the shelves, and those products were in fact already on the shelves by the model #s named in the order.

    Safety 1st simply told the stores after the order went into full force, that oh BTW some of those products had a modified part and should for now be called XXXXXC model.

    Such change by Safety 1st was made after the order went into full force. According to you the infringer could not possibly do that to avoid a contempt, they had to first pull all the Bounecenette products off, then ask the court permission to restock the modified products.

    Look Greg, I know there is no way you can accept any other outcome, and will stick to the end of your belief, that is fine. I have no problem you do that, and the judge's ruling will tell us who is right.

    What you cannot, as a reasonable person, deny that in both StarBrite and the Safety 1st cases, a clear violation of the letter of the order existed. And due to modification and the patentees' failure to prove with clear and convincing evidence the infringers still infringed at the time of the contempt proceedings, there were no contempt.

    So if you insist on the issue of violation on the face of the injunction, and on that alone, DISH must be found in contempt, then we have case law to prove you wrong. Finding all excuses why the other infringers got off free totally misses the point.

    The point is, we have cases where infringers clearly violated the letter of the injunctions, and were not in contempt, pure and simple, regardless the background information.

    So if your only beef with DISH is on violation of the letter of the injunction, and that alone, stop saying but DISH's background info is different than the other two.

    No you may not argue on the background info, because your argument itself is based on one and one only, violation on the face, nothing else, you insisted that, you cannot conveniently use the background info when it suits you, in those two prior cases, then suddenly want to ask the court to totally disregard the background info and find DISH in contempt on the face, and on the face only.

    Either the court must consider those cases's background info, including the one in front of us today, or the court does not. Can't have it both ways.

    Therefore today, when you insist violation of the letter of the order is the only thing the court must consider, then I can offer you at least two prior cases in which violation of the letter of the order was clearly true, but the infringers were not in contempt.

    What TiVo must do, as Judge Folsom asked, to provide case law to prove other wise, Tivo could not come up with anything, the best they did, as the judge stated, was that "C" case which TiVo said proved DISH should have asked to have the order modified first, if DISH disagreed with the letter of the order.

    But again, DISH did not disagree with the letter of the order, DISH considered the order totally correct, based on their interpretation, and believe they are in full compliance of the order.

    The judge will have to decide if he will go with the DISH's interpretation, or the TiVo's interpretation.

    One other thing I can say, as you are familiar with, if two interpretations both have merits, then the court must go with the defendant's interpretation, because when an order can be reasonably interpreted in two different ways, an ambiguity exists, and when an ambiguity exists, the defendant, not the plaintiff, gets the benefit.

    Could Charlie be wrong? Of course he could, but as each side bet on the outcome, one has to consider the odds, and given that Charlie is a poker player, he must have considered those odds, and now it is up to him to call or fold. But if I were him, I would definately call it, consider all the case law and the questions Judge Folsom asked of both parties' lawyers on 9/4.

    Why, because it will be a safe bet, not only due to the case law, but the fact even if I lose on the ruling, I can still appeal, and the appeals court will have to agree with me, based on the uniform standards they have established themselves. It will not be the end of the game. In such a poker game scenario, it would be stupid not to call it.
     
  11. Sep 15, 2008 #771 of 1182
    James Long

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    Got proof of that statement? It isn't supported in the rulings we have to read. If you want the truth, read Greg's posts.
    No such "clear violation" existed. Both injunctions named specific products that were enjoined. Both contempt proceedings involved products that were NOT the same as the products that were enjoined. In both cases the products were differentiated by product name or product number and the new product was non-infringing.
    Yes Greg, stop posting the truth. You're making it hard for jacmyoung to win the argument. :rolleyes:
    You can? Which cases? Certainly not Starbrite and Safety 1st.
    Is it reasonable to say "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data)" does not mean precisely that?

    772 more words and no more understanding?
     
  12. Sep 15, 2008 #772 of 1182
    Greg Bimson

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    Did someone make you thread police when I wasn't looking?

    Of course Judge Folsom must consider the arguments presented by DISH/SATS in their defense. However, that consideration could simply be that KSM is not the correct standard for this case.

    So of course you can have it both ways:

    First, TiVo accuses DISH/SATS of ignoring an injunction.
    Second, DISH/SATS defends their position that the injunction does not apply because of a modification.
    Third, TiVo is allowed to respond why DISH/SATS defense does not apply.

    If it is good enough for the court to do this, then it is certainly good enough for me.
     
  13. Sep 16, 2008 #773 of 1182
    jacmyoung

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    I hope you do understand this is the problem with TiVo and many of their followers, that insisting DISH said the order does not apply.

    DISH never said the order did not apply, they said the order applied 100%, they told the judge that many times, that his order was 100% correct.

    And DISH also told the judge they were in full compliance of his order.

    Yet TiVo continued to allege that DISH did not like the wording of the order, that DISH disagreed with the order, but did not try to ask the judge to modify the order.

    Because of such mischaracterization of DISH's position, when the judge asked TiVo what if I did not find DISH in violation of my order on its face? What did that leave you?

    TiVo's lawyer was a deer caught on the headlight, could not come up with a proper case to respond, again as the judge said, the closest case TiVo came up with, only proved if the infringer disagreed with the order, they needed to seek a modification of the order during appeal. Not applicable in this case because DISH considered the order 100% correct.

    TiVo came into 9/4 with the absolute convinction that DISH was in violation on the face of the order, and that alone would be enough to get a contempt ruling.

    So when Judge Folsom asked what if I did not find DISH in violation on face of my order, they were totally unprepared to give an answer.

    TiVo's such over confidence was not the first time. They were over confident they could get a infringement verdict on the hardware claims that they did not consider the infringement on the equivalents, only went with literal infringement, and ended up having the hardware verdicts overturned on appeal.

    TiVo again did not think the new software mattered, that prima facie violation would be enough, so when DISH filed a new suit in DE, TiVo was totally unprepared, they were forced to accept DISH's new software claim and began to argue the new software colorable difference based on the DISH's evidence, in order to defeat DISH's DE suit. They did not have time to even consider if DISH's new softwarwe evidence should be challenged or not.

    TiVo did not dispute the evidence, so now both parties have accepted the evidence, and Judge Folsom can rule on the evidence without any need to grant TiVo any more discovery on the new software evidence.
     
  14. Sep 16, 2008 #774 of 1182
    dfd

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    Overturnded <> Remanded.

    This is why your arguments carry little weight. Words mean something. You cannot just go and make up your own definition and expect us to come along.
     
  15. Sep 16, 2008 #775 of 1182
    nobody99

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    Based on this little exchange, I thing that Judge Folsom is setting up DISH to be in contempt until after a hearing that determines a more than colorable difference in the software (jacmyoung, save your breath, please).

    I think that he will give them some period of time - say, 7 days, to disable DVR functions and then find them in contempt. He will schedule a hearing (hopefully three months out :)) to determine the status of the new software.

    This would actually make a lot of sense, because it would seperate products into three seperate categories:

    1) Adjudicated products
    2) Products merely colorably different
    3) Products more than colorably different

    KSM dealt specifically with #2 and #3. The were allowed to design around the patent and produce new product without fearing that they've disobeyed a court order.

    In DISH's case, they probably have products in all three categories. But the 9/4 hearing dealt only with products in the first category.

    Since they are already adjudicated, DISH doesn't get to act as its own judge + jury (and laughably trot out their three, er, two reasons why Judge Folsom can rule this way). In any event, none of that should matter - if the courts are going to allow design-around on already-adjudicated products, at the very least it should require court approval to allow those products off the hook.

    So Judge Folsom comes out saying that they didn't follow his injunction, and he gives them 7 days. He schedules a hearing in three months to determine the differences with the new software. In the meantime, TiVo collects treble damages through that hearing (assuming they are more than colorably different) or jail time (if they are not more than colorably different)

    Interestingly, even if they are more than colorably different, I think TiVo will get enhanced damages due to all the case law that allows a contempt finding even if the injunction was not correct (i.e., they had already installed non-infringing software). And since contempt fines in a civil case go to the injured party - TiVo gets to keep the contempt fines.

    That's my new prediction (my previous prediction of settlement by September 11th is now out the window :))
     
  16. Sep 16, 2008 #776 of 1182
    jacmyoung

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    A decision overturned on appeal is usually remanded for reconsideration.

    Did I ever ask you to come along?
     
  17. Sep 16, 2008 #777 of 1182
    Greg Bimson

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    Correct, dfd.
    Let's see.

    Judge Folsom instructed the jury that if they found literal infringement on the hardware claims, that there was no need to rule on the doctrine of equivalents.

    So that has nothing to do with overconfidence by TiVo. The hardware claims were overturned because of Judge Folsom's instructions.
    Yet, this 4 September hearing was about whether or not DISH/SATS complied with the spirit of the injunction. What was Judge Folsom's words on what 4 September was all about?
    Right here Judge Folsom states that DISH/SATS failed to disable the DVR functionality in the Infringing Products.

    Compliance with the disable order did not happen. And once again, as the argument is always pointed back on me, stop believing everything that DISH/SATS says.
     
  18. Sep 16, 2008 #778 of 1182
    nobody99

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    That's a good point. You usually demand we come along. (TiVo fans must this or the Judge must that)
     
  19. Sep 16, 2008 #779 of 1182
    jacmyoung

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    The reason for such instruction was TiVo did not seek a decision on infringement on the equivalents on the hardware, so the jury might not decide on equivalents. TiVo did seek decision on both literal and equivalents on the software, and I think because of that the software verdicts stood well.

    Judge's "words" also said the design around discussion was not on 9/4's agenda. Last I checked design around was discussed in depth, judge was questioning Mr. Chu on KSM, on the issue of design around, the judge had trouble figuring out why TiVo dismissed KSM's design around concept.

    And stop believing everything TiVo says. Because if you do you will be like TiVo, when the judge asked, if I found DISH not in violation of my order on its face (meaning DISH was in compliance of the letter of my order), what did that leave you, you would have lost your words.

    Again, why did you think judge even bothered to ask such question, if it was "not on his agenda?" Just to toy with TiVo? Just to make TiVo's lawyer look bad?
     
  20. Sep 16, 2008 #780 of 1182
    phrelin

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    Actually, I've seen judges do just that, even in Sacramento Superior Court where you apparently live.
     
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