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. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    If there is no "shut off penalty" what would DISH be in contempt of?

    I thought the contempt charge was brought up because the boxes were not shut off.
     
  2. nobody99

    nobody99 Icon

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    I agree that this is how the case should have gone. However, there is still the issue of procedure. If the meaning of the injunction is changed to allow DISH to put new software on the adjudicated receivers, it's not fair to TiVo either - they would have had a chance to argue for particular wording in the injunction. Now they don't get that chance. Let's face it, the remand on the hardware complicated this whole thing beyond all recognition.:nono2:
     
  3. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    That is an excellent point. Why did Tivo seem to just give up on the hardware issue? :confused:
     
  4. Greg Bimson

    Greg Bimson Hall Of Fame

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    Because it wouldn't have been adjudicated by now.

    Plus, since it appears DISH/SATS are no longer using an index table nor media switch, they may have bypassed the hardware claims altogether.

    What would be the use of bringing up the hardware claims when the software claims are probably the strongest of the patent, and the infringement still applies?
     
  5. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Because it would have left no doubt about the meaning of the injunction. The injunction was written with the hardware as well as the software in mind.
     
  6. Curtis52

    Curtis52 Hall Of Fame

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    Therma-Lok was not mentioned in the injunction and neither was infringement. The district court determined that Ultra-Lok was "of the type and nature identified by the Plaintiff" and therefore enjoined.

     
  7. nobody99

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    Yes, that's exactly what I'm getting at. Judge Folsom's intent might have been to disable DVR functionality because he thought it would be impossible to bypass the hardware. If he knew that the hardware portion would be remanded, he might have worded things differently.

    That said, I think I am getting a bit too hung up on the software/hardware differences. Even the appeals court said that the "hardware" claim still relied to some extent on software.
     
  8. nobody99

    nobody99 Icon

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    Wow. Really?

    I can't think of how you could be more incorrect :lol:
     
  9. Ergan's Toupe

    Ergan's Toupe Duplicate User (Account Closed)

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    Well that didn't take very long. :lol:
     
  10. Greg Bimson

    Greg Bimson Hall Of Fame

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    The injunction refers to the complaint. You can bet Therma-Lok is in the complaint.
     
  11. Curtis52

    Curtis52 Hall Of Fame

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    The injunction says "type and nature". That is much more inclusive than naming a specific device.
     
  12. jacmyoung

    jacmyoung Hall Of Fame

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    Let me try this again.

    In the KSM case, there was this path:

    Patentee to the lower court—defendant in violation for using these products because they were the same as the adjudicated devices—lower court—agreed, the products were the same—contempt of the order—on appeal—defendant to the appeals court—there were differences in those products—appeals court agreed—contempt overturned—remand to the lower court—lower court to look at the differences—then make a ruling again.

    The above path is the same in ALL contempt proceedings in patent infringement cases where design around is present. That is why the KSM appeal case is the standard, used in all such cases where design around are present, no exceptions.

    In this case, here is the path:

    TiVo to the lower court—E* in violation for using these DVRs because they are the same as the adjudicated DVRs—lower court—(if) agreed, the DVRs are the same—contempt of the order—on appeal—E* to the appeals court—there are differences in those DVRs—appeals court agrees—contempt overturned—remand to the lower court—lower court to look at the differences—then make a ruling again.

    The same path, because this case is no different than all other similar cases, this case is not special, it is not historic, the judge already said this case was not special.

    The argument that the DVRs were already at the end users will not work because TiVo is trying to make this case a special case, unlike all other cases. TiVo is asking the courts to establish a new special kind of standard, one reserved especially for the adjudicated products already at the end users.

    The point to understand is, to do so requires the establishment of a new standard, such standard has not been established yet to make the products already in the field an exception, until such exception is made into a standard, it cannot apply here.

    The mistake TiVo is making is somehow they believe the courts will make some special rule just for this case. Even if true, it will have to be done up on the very high level, and contested to ensure it will stand. This process will be time consuming and be faced with repeated challenges, before a standard may be established.

    Until then, the defendant gets the benefit of not having such special standard. Because the defendant gets the benefit of any ambiguity, any doubt, any less than clear definitions.

    TiVo needs to have that special standard first established, good luck with that.
     
  13. nobody99

    nobody99 Icon

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    Can I point out the flaw in your logic? The big, gigantic, gaping-hole of a flaw?

    "the same as the adjudicated products" is not the same as the actual adjudicated products.

    That is the whole point. The weren't held in contempt because they weren't the actual products for which a legal decision had already been rendered!
     
  14. Greg Bimson

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    And we can stop right here because this is flat out wrong. The Ultra-lock products were not "the same as the adjudicated devices", which were the Therma-lok products.

    Because KSM was a consent decree, with an injunction that did not follow Rule 65(d), and an over-reaching injunction, the district court simply applied the injunction wording against the product and found it was within the scope of the injunction and should also be enjoined.

    However, Jones (the infringer) felt that the standard which should be used is to check for infringement first. That infringement must be compared to the adjudicated product.
    But only when accusing a device of infringement that has not been adjudged nor addressed by the court.

    The accusation here is not infringement. The accusation is simply not following a direct order. Although DISH/SATS says they've followed it. To the letter. Yet the injunction is active and in full force and effect, and nothing is currently disabled. And about three million DVR's in the hands of customers have been ruled as infringements and are subject to that order.
     
  15. Curtis52

    Curtis52 Hall Of Fame

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    At that point, there was no doubt that Ultra-Lok was an adjudicated device.

    They were both adjudicated devices. The appeals court said to look at the patent claims.

     
  16. jacmyoung

    jacmyoung Hall Of Fame

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    Can you quote me the above? Where did the appeals court say the injunction was over-reaching, or rather the contempt ruling was over-reaching?

    Two different things you know.
     
  17. nobody99

    nobody99 Icon

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    Do you know what "adjudicated" means? Do you know what an "appeal" is?

    When the consent decree was entered, it named a particular device (THERMAL-LOCK). Jones admitted that the THERMAL-LOCK device infringed the patent, and was enjoined from selling, using, etc., it.

    Jones then went out and created a new device (ULTRA-LOCK) with some slight changes. That new device, which was not part of the consent decree, was nevertheless found to be infringing under the original consent decree.

    ULTRA-LOCK was never adjudicated. It was never part of the original consent decree. Therefore, the appeals court reasoned

    Seriously, why are we having these conversations if people can't understand the most basic of facts?
     
  18. jacmyoung

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    Because there are people who lack the understanding beyond the physical appearance that in this case, only the software was found to have infringed, and therefore everything prohibited in the order, is to prohibit the continued use of the infringing old software, no more no less. Any interpretation beyond the prohibition of the old software, is wrong.

    The only acts an injunction can prohibit are infringement of the patent by the adjudicated devices, and infringement by devices only colorably different than the adjudicated devices, therefore the injunction may only proscribe those specific acts.

    Everything in this order, whether the "first order" or the "second order", is to make sure the old infringing software may no longer be used in those DVRs.

    If you can wrap your head around this concept, then you are free:)

    If one simply is not capable of thinking beyond that point, or if capable yet refuses to think beyond that, then the judge's ruling will help you in making that effort.

    Let me say it again, the only reason to disable "the DVR functionalities" is to disable the old software, because only the use of the old software was the act that had infringed, therefore only that act may be prohibited in this injunction. And only such interpretation may ensure that this order is in compliance with Rule 65(d).

    Any other interpretations trying to insist this order is to prohibit a lot more acts than the above, will render this order not in compliance of the Rule 65(d). How much do you want to bet the judge will not like to call his order a bad order just to make TiVo happy?
     
  19. James Long

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

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    Mod Hat On

    I've been sending too many "keep a civil tone" PMs and warnings lately because of this thread. News will break ... and we'll get a new thread. But we've gone circular again and dropped back into regular insults. So let's just call this done until Judge Folsom rules.

    Thread closed. Look for the next thread if there is any court action to discuss. A link to the new thread will be added to this thread when news breaks.
     
  20. Oct 1, 2008 #1180 of 1182
    James Long

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

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    Nothing special ... just to note that DISH has changed it's name (last January).

    STIPULATION Joint Stipulation Re: Substitution and Joinder of Parties by TIVO Inc, "EchoStar defendants".

    WHEREAS EchoStar Communications Corporation changed its name to DISH Network Corporation, and
    WHEREAS DISH Network Corporation transferred technology and certain infrastructure and assets to EchoStar Corporation;
    NOW THEREFORE, the parties stipulate and agree as follows:
    1. Pursuant to Rule 25(c) of the Federal Rules of Civil Procedure, DISH Network Corporation will be substituted for EchoStar Communications Corporation;
    2. Pursuant to Rule 25(c) of the Federal Rules of Civil Procedure, EchoStar Corporation will be joined as a defendant in this action;
    3. The terms "defendant" and "defendants" shall, for all purposes, include DISH Network Corporation and EchoStar Corporation as well as the five original defendants in the action.​

    Rejected by the court on 10/2/08 ...
    NOTICE of Deficiency regarding [861] the STIPULATION Joint Stipulation Re: Substitution and Joinder of Parties by TIVO Inc, "EchoStar defendants". submitted Attorney must file a motion to join additional parties. Correction should be made by one business day.

    Thread Remains Closed
     
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