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 22, 2008 #961 of 1182
    Ergan's Toupe

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    Don't hold your breath waiting. Trust me, I've been waiting for weeks. ;)
     
  2. Sep 22, 2008 #962 of 1182
    nobody99

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    Yeah, he's not a very good research assistant, is he :lol:
     
  3. Sep 22, 2008 #963 of 1182
    jacmyoung

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    Yes there is, I have quoted the courts saying just that several times.

    If either side's argument has merit, the court must rule in favor of the defendant.
     
  4. Sep 22, 2008 #964 of 1182
    Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Ummmmmm....... WHAT!!!?? :confused:
     
  5. Sep 22, 2008 #965 of 1182
    jacmyoung

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    Again, in a summary contempt setting, TiVo as the mover does not enjoy the same benefit as DISH the non-mover. TiVo must prove with clear and convincing evidence that DISH's design around still infringe, and DISH only needs to establishe the doubt whether the new design around still infringe, they don't even need to prove non-infringement.

    And likewise, as far as the interpretations of the order, TiVo must completely refute DISH's interpretation, TiVo did not even try, TiVo simply assumed theirs would be the given, they forgot they are the plaintiff and the mover, they bear all the burden of proof. If DISH's interpretation has merit, it does not even have to be full-proof, the court must rule in favor of DISH. I am not saying that is exactly what the court will do, you know courts have abused their discretion before, that is why there is this thing called the appeals court.
     
  6. Sep 22, 2008 #966 of 1182
    jacmyoung

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    If you can't understand, continued asking why is not helpful.
     
  7. Sep 22, 2008 #967 of 1182
    Ergan's Toupe

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    Is this that "tie goes to the runner," thing again? :lol:
     
  8. Sep 22, 2008 #968 of 1182
    scooper

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    No - more like "if in doubt - decide on Not guilty.

    Like "If the glove doesn't fit - you must acquit"
     
  9. Sep 22, 2008 #969 of 1182
    Greg Bimson

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    Not on devices already adjudicated as infringements and installed in customers' homes as of 8 September, 2006.
    You mean like this?
    There are plenty of other paragraphs I can quote from that document.
    The injunction says to disable the receivers.

    So TiVo is refuting both of these positions:

    Position 1:
    If an injunction can only prohibit acts of infringement, yet the injunction forces DISH/SATS do disable their new (but installed for the past two years), supposedly non-infringing receivers, the injunction should have been challenged. Heck, even the wonderful injunction in KSM did not comply with Rule 65(d), but it was certainly a valid injunction.

    Position 2:
    Except that there is no question on "new products", just the ones that have been adjudicated as infringements.

    Whether or not they currently infringe has no bearing on the fact the order says to disable them.
     
  10. Sep 22, 2008 #970 of 1182
    Ergan's Toupe

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    Since there is no doubt the injunction says to turn off the DVR's for the life of the patent why are they still working? :confused:

    If the glove fits you must not acquit... :D
     
  11. Sep 22, 2008 #971 of 1182
    Ergan's Toupe

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    I wish I had a buck for every time someone has explained that to ole Curt.... :lol:
     
  12. Sep 22, 2008 #972 of 1182
    peak_reception

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    And with the same amount of credibility :nono2:
     
  13. Sep 22, 2008 #973 of 1182
    jacmyoung

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    That has been TiVo's and your opinion as well, not of the court. According to all case law your such opinion does not fair too well.

    Quoting TiVo does not prove much, TiVo says things only to fit their way, quote case law, like we do:)

    Quote me where the order forces the disabling of any "new products"? Again don't take TiVo's words as if it is true, use your own logic and seek facts for support not just what TiVo is saying. The order only prohibited the same models of the DVRs from been installed the same "infringing DVR functions", and that only.

    No where in KSM was the injunction deemed not in compliance with the rule. Only the contempt ruling was in error. Besides what was your point anyway, in KSM the contempt ruling was overturned was it not?

    Again don't bring in the new products in this debate, and don't act as if your opinion that once a product is ruled to infringe, it forever infringes, it is only your opinion.

    Again your opinion only, don't speak as if it is true.

    I know some will say but yours are opinions too, how come you speak as if they are true? Well for one thing my opinions are based on case law, not just what DISH had said.

    Secondly as I said, what is important is not if my opinion is correct or not, but if my argument has any merit or not, if the answer is yes, I should win because I am the non-mover, the defendant in this case, even if TiVo's argument also has some merit, it does not matter, as long as my arugment also has merit, I win.

    Again TiVo and its supporters seem to not understand one thing, in this summary contempt proceeding, you folks must prove with clear and convicing evidence, must completely refute our interpretation of the order, in order to win.

    In stead you act as if DISH must do the above, and you only need to find even the little bits of "irrelevance" in all the case law that we have cited.

    No, it is the other way around, you guys must do the citing of all relevant case law, and you folks must convince the court with clear and convincing evidence.

    So when you realize that for the most part you are only on the defense, frantically trying to dig up a few words in this prior case, and a few other words in another prior case, and trying to argue those prior cases are "irrelevant", even saying KSM is irrelevant, then if that is all you can do, chances are you are going to lose, I am sorry to say that.
     
  14. Sep 22, 2008 #974 of 1182
    Curtis52

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    That's almost identical to what the district court said in KSM vs. Jones. Jones was enjoined against using or selling fasteners of the type and nature identified by the Plaintiff. There was no mention of infringement in the injunction. The injunction wasn't even forced on Jones. It was a consent decree. They actually agreed to stop using and selling fasteners of that type or anything similar with no mention of infringement in the injunction and seemingly no way out of such an ironclad injunction. The district court didn't think it was germane to check whether the modified parts infringed. They thought it was enough that the modified parts met the enjoined criteria and ruled there was contempt. The appeals court disagreed. Even though infringement wasn't mentioned in the injunction, prevention of infringement is the basis of all patent infringement injunctions regardless of how the injunction is worded. They told the district court that they had to check for infringement.
     
  15. Sep 22, 2008 #975 of 1182
    Greg Bimson

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    How many spins do you need to make your logic? This entire paragraph is so full of spin that the Earth will never sit still.

    First, the injunction does not order any "new products" to be disabled. Just because there is a modification on an adjudicated, infringing product does not make Joe Blow's four-year old 501 a "new product".

    Second, the order on those installed, Infringing Products is to disable storage to and playback from a hard disk drive of television data. Not your spun "infringing DVR functions".
    I'd argue with case law, and have been...

    Like Fisher-Price and the order against Safety 1st to recall product. They did not recall the product to the best of their ability; they were found in contempt.

    Again, just because there was a modification does not make this case any different than any other case where either disabling or recalling were ordered.

    Follow the injunction: disable the models ordered to be disabled.
    Oops. From paragraphs 27 and 28 of the Court of Appeals decision:
    The injunction in KSM had an error, but it was too late to be corrected.
    As KSM was a consent decree, none of the products were "found" infringing. In this case, the accused products have already been found infringing. So KSM obviously does not apply.
    I think you have been missing our point. And yes, this will be obvious:

    If DISH/SATS interpretation of the injunction is incorrect, and KSM cannot be applied to this case, then DISH/SATS loses.
     
  16. Sep 22, 2008 #976 of 1182
    Greg Bimson

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    A judgment of contempt can only be found against violation of an injunction against patent infringement by the making, using or selling of a modified device if it is an infringement.

    Funny how that is the standard injunction order; where does it mention disabling products found as infringements?
     
  17. Sep 23, 2008 #977 of 1182
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator

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    Quoting Tivo proves that you were wrong, perhaps even lying, when you made the claim that "TiVo did not even try" to refute DISH's interpretation.
    No where did the injunction specify that it was "the same" DVR functionality being enjoined.

    You can't have it both ways. You can't claim that the injunction is specific when it helps your fantasy and not specific when it doesn't. The injunction is what it is. DVR functionality is clearly defined. The eight models of Infringing Products still have DVR functionality as defined by the injunction. They write and read television data from a hard drive.
    Demonstrate how that is done. It seems that all you are capable of doing is fantasizing and speaking it as if it were true.
     
  18. Sep 23, 2008 #978 of 1182
    nobody99

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    How Curtis and Jac continue to think KSM applies to this case is suprising to me. Let's look at a quote from Rectifier vs IXYS again.



    I know this is really difficult for Curtis, but when taken in context, KSM atually works against DISH.

    "contempt proceedings... are available only with respect to devices previously admitted or adjudged to infringe"

    Killer words for DISH.

    Here's where the two of you get lost in the logic. You believe that KSM allows adjudicated devices to get out of the scope of the injunction. It does not. It allows non-adjudicated devices to be added to the scope of the injunction without a new trial. That is an extremely important distinction that seems to be lost on the two of you
     
  19. Sep 23, 2008 #979 of 1182
    nobody99

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    Case

    here's another one that references Additive controls and explains that it allows for an injunction to have products added, not removed.

    jacmyoung - please provide a single case where a device was removed from the scope of the injunction. Just one, that's all I ask.
     
  20. Sep 23, 2008 #980 of 1182
    jacmyoung

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    The Footprint2.0, and the egg processing method I quoted.

    The Footprint2.0 serivce was a combination of hardware and software that was found to infringe, and after a software update, it was no longer considered infringing. The only argument you folks had was the injunction in that case "allowed" such change to happen, but as said over and over, there is no requirement it has to be first "allowed", it did happen, that is your proof.

    BTW, even though I understand you all want so believe the judge may disregard KSM, as TiVo insisted, but unfortunately this will be the biggest mistake TiVo has ever done.

    KSM is the standard of all contempt issues on patent infringement. Trying to convince the judge he should disregard KSM, he will not and he cannot, all cases involving design around had used KSM for guide, all of them, Judge Folsom is not going to be the first to go against that trend, because if he does, he knows the appeals court will disagree with him.

    The appeals court already said, KSM is the case for all such cases be guided. This case is no different, don't think for a minute this case is extraordinary, it is only wishful thinking.
     
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