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Discussion in 'General DISH™ Discussion' started by James Long, Sep 4, 2008.
No. Only in cases "by reason of a manufacture which was not the subject of the original litigation"
All post-KSM contempt rulings in motions accusing a device of infringement against an injunction against infringement, all of them, used KSM as a guide.
Except this is not a motion for contempt against patent infringement. These are receivers already found as infringements.
Try this, all contempt proceedings in patent cases where design around were an issue, all of them use KSM, so unless you believe this case is historical, then KSM will be used here too.
If you read the whole thing on 9/4 carefully, both E* and TiVo’s lead attorneys asked the judge to move the case along.
TiVo’s attorney asked him to at least schedule the next hearing, say two months from now, sounded reasonable? Did the judge care? No.
E* attorney asked the judge to resolve the discovery issue in the afternoon or on Monday, did the judge care? No.
Both the above requests appeared quite reasonable, after all, if we have to wait till the end of November for a ruling then decide what will be the next step, it will be another 2 months of delay. So why not just simply set a date two months from 9/4?
Because he did not care. He said he had no time, not even another hour, and he did not return to hear it on the next Monday either. He had other things to tend to.
So far he has not issued a ruling, therefore it is likely he had not spent any time on this case yet. While he said he would try and do so by 10/1, if not he would have to first go back to Marshall, TX, and there would be another case or two to deal with, and only after that he would be able to do some “looking” into this case. Of course if he does, he will give it all his attention, but this case certainly is not important to him to justify a priority ruling. Would it be possible that a ruling would show up anytime now? Of course, but so far the evidence do not point to that direction.
Let’s face it, this case is not special to him, it is no different than the Paice v. Toyota case, no different than the other cases in front of him, and certainly no different than all the other patent infringement contempt cases where design around issues were involved.
Did I mention this case is not special?
TiVo’s mistake is they believe this case is historical, “far more reaching” than even the Blackberry’s case of “a couple of million users”. But no, this case is not far more reaching, it is just one of the many cases. It did not deserve another hour of the judge’s time on 9/4, not even his effort to set a new court date two months from that time.
But these are "different" receivers. Those receivers disappeared. Charlie is happy with the injunction.
Did I get that right, Curt?
Except those design-arounds were not the adjudicated devices subject to a disable order and already found infringing.
So again, the use of KSM in this case would be historical. The belief that KSM applies to this case is hysterical.
Honestly, why do you keep ignoring the context of KSM?
"by reason of a manufacture which was not the subject of the original litigation"
When you have a false premise, your conclusion is suspect.
I am reasonably sure they believe they are right ... whether or not they are right is a question for the court.
Tivo will live better if they get a contempt verdict. Tivo needs a victory to keep the industry in line. Once DISH (and others) prove that one can have a functional and award winning "better than Tivo" DVR without paying Tivo the value of deals with Tivo is much less.
So far. But there is still an appeals path to follow ... DISH isn't giving up.
Now you're accusing SCOTUS of being corrupt? Unreal.
On what grounds do you feel the SCOTUS should take this case?
Techincally, has already decided to take it or not I wish we could find out sooner!
Desgin around has always been about the adjudicated devices or devices only colorably different than the adjudicated devices, this case is the same. There had never been one time the court tried to say oh BTW devices already sold did not count. Remember the defendant gets the benefit of what was not said.
So again let's try the logic one more time:
All past patent infringement contempt cases used KSM as the standard. If this case also uses KSM as the standard, it is not historic, it is the norm.
If this case does not use KSM, therefore is not like all other cases before it, then this case will be historic.
The belief that this case is historic is indeed hysterical because the judge already said it was not special to him.
"by reason of a manufacture which was not the subject of the original litigation"
If Judge Folsom applies KSM to this case, it could overturned on appeal based on that decision alone. KSM does not apply to already-adjudicated devices. You can tell yourself it does over and over again, that doesn't make it magically apply.
The KSM was about the already-adjudicated devices, you again failed to read where Curtis52 and Greg were debating before.
The KSM case was a case in front of the appeals court, at the time the appeals court was faced with the already-adjudicated devices, the ones that were modified but still adjudicated during the contempt proceeding at the district court level as to still in violation of the order.
The apeals court told the lower court, but you may not find the use of those already-adjudicated devices in contempt without first finding infringement with clear and convincing evidence.
Because at the appeals court level, all devices in front of it are already-adjudicated devices, not already adjudicated devices will never get to the appeals court level until they first are adjudicated by the lower courts.
Yes, KSM was an appeals court case we are talkng about, and it was about already-adjudicated devices.
That is why KSM has always been used in all patent infringement contempt cases, when design around was involved, there was no exception, nor will this one be an exception.
I wonder if the involved parties find out early. I would think they do, no?
The TiVo folks very much like to forget the question the judge kept asking on 9/4, what if I did not find E* in violation on the face, what did that leave you?
Later in the damage discussion, he asked again:
“Okay. Well, Let me—and I know you obviously disagree, but let me ask you to assume first that I find that contempt on the face of the order is not appropriate, and then for whatever reason let’s say I decide that this is best determined by the action either in Delaware or a new action here. Where does that leave you on your damages?”
Here again the judge had clearly laid out a possible path where he could end the case if he found E* not in contempt on the face of the order. The Delaware case will take over, or a “new action” in his courtroom will take over, which meant a new case filed by TiVo on the new design around in Texas.
As I said there is a chance once the judge finds E* not in contempt on the face of the order, he could end this case. He refused to grant Mr. Chu’s request on 9/4 to schedule another hearing two months later, now you know what the judge might be thinking.
I am not saying this will be the path the judge will take, but when he repeatedly tried to ask TiVo’s attorneys what their responses would be under such a scenario, you must admit such scenario is real. The judge would not have wasted time to repeatedly ask such question if it simply had no chance at all.
Did Judge Folsom appear to any of you that he had a lot of time to ask useless questions?
No, he was too busy laughing at and scolding Charlie's hired guns. :lol:
jacmyoung, if you are going to flat-out lie, at least lie about things that can't proven with a simple quote.
First off, the THERMAL-LOCK was the device that infringed on that patent. That is the "adjudicated" device (not really, since it was a settlement agreement before it was actually found to infringe).
The Ultra-Lok I and Ultra-Lok II were not adjudged. It is these devices which were subject to the injunction. Note that they were newly-manufactured, and not already installed. And when the court says
it's plain to see why the court made the decision it did:
So you can clearly see that the injunction was for THERMAL-LOCK devices, but KSM was trying to have contempt against ULTRA-LOCK.
In our case, the already-installed devices are THERMAL-LOCKS, and the newly-manufactured devices are ULTRA-LOCKS.
I can hardly wait for how your fantasy-land interpretation will play out on this one :lol:
Yes. He's thinking that Chu's request for discovery to determine colorable differences for the new receivers is premature. I'm sure he's thinking that DISH will settle once he makes it clear that contempt will be found.
The consent decree named the Therma-lok product as an infringing product, and the injunction enjoined its sale. KSM then filed a contempt motion regarding the Ultra-lock products. The Court of Appeals reversed the granted contempt motion, stating that infringement must be found before contempt can be granted.
In other words, a modified product "not the subject of the original litigation" must be found to infringe.
And the standard does not apply to devices already found to infringe.
And because TiVo is simply asking that the disable order be followed, the above does not apply.
In other words, the courts do not have to excercise restraint in affording the patent owner the benefit of contempt proceedings when talking about adjudicated devices. After all, these are the devices subject to the original litigation.
There are two directions for Tivo to go ... if contempt is found it basically means that the existing placed receivers cannot be modified - the old receivers are dead (after all appeals are exhausted) and Tivo can move on to unnamed receivers (ViPs). If contempt is not found then Tivo needs to move on to claiming infringement on the existing named and placed products. It would be premature for Judge Folsom to grant a speculative hearing date when he hasn't ruled on a key point in the case.
Judge Folsom could rule contempt purely on the basis of Walker and not touch the infringement issue ... DISH would be in contempt for not following the injunction to the letter but Tivo would still have to pursue actual infringement contempt on the named products. Walker is a weird type of contempt. One can be innocent of the underlying offense yet still be held in contempt for disobeying the court process.
I don't know how famous Judge Folsom wants to be and what law he wants to make. I'd love to see a verdict of Contempt with no "shut off" penalty ... holding DISH accountable for not following the legitimate order of the court but accepting that had DISH followed a different path of notification there would be no contempt and then deal with the issue of contempt by infringement separately.
If anyone is interested in the Supreme Court ruling on Monday, refresh this page at 10 am Monday 10/6.
Click on the link that will say "10/06/08 Order List".