# Continued Coverage of TiVo/Echostar Trial



## ZeoTiVo

No one else was making the new thread* so even though I am just lurking on the thread I figured I would get the next thread lined up. At least this way I get my Dot 

the previous thread is
http://www.tivocommunity.com/tivo-vb/showthread.php?t=293670

*The forum database has to do a lot of extra work when (ETA: threads get too darn big for their own good ) and people are still calling it up and posting. The practice is to make a new thread to continue the discussion.


----------



## Einselen

Dot Dit Dot Dot Dit Dit Dot


----------



## JimSpence

Does anyone really care about this?


----------



## 1283

JimSpence said:


> Does anyone really care about this?


With over 1000 posts in the original thread, what do you think?


----------



## bidger

I thought it was only threads in the Happy Hour that had to be closed when they reach 1,000 posts. Last I checked there's no lock on the other thread. It would seem that we're on the verge of some kind of resolution or closure, why start another thread now?


----------



## timckelley

bidger said:


> It would seem that we're on the verge of some kind of resolution or closure, why start another thread now?


Really, we're on the verge of closure? That's excellent news. What is at long last going to happen to Echostar? Something severe, I hope. How soon can we expect this closure?


----------



## HDTiVo

Why not 1024 posts?

How will the check ever get into the mail if the thread isn't closed?


----------



## bidger

timckelley said:


> Really, we're on the verge of closure? That's excellent news. What is at long last going to happen to Echostar? Something severe, I hope. How soon can we expect this closure?


Tim, I have no inside info, I just seem to recall July being mentioned in the thread.


----------



## timckelley

That's good... I'll be sure to tune in here in July.


----------



## HDTiVo

bidger said:


> Tim, I have no inside info, I just seem to recall July being mentioned in the thread.


You better put the Court of Appeals on notice of that, because they are going to be awfully surprised.


----------



## DancnDude

bidger said:


> I thought it was only threads in the Happy Hour that had to be closed when they reach 1,000 posts. Last I checked there's no lock on the other thread. It would seem that we're on the verge of some kind of resolution or closure, why start another thread now?


I'm sure there will be a lot of extra discussion, especially after a decision has been made. I believe there is a 1,000 post rule on all threads (as Zeo mentioned) because the forum software starts getting bogged down after a large number of posts. Of course 999 vs. 1000 vs. 1006 isn't much difference but they have to draw the line somewhere.


----------



## ZeoTiVo

DancnDude said:


> I'm sure there will be a lot of extra discussion, especially after a decision has been made. I believe there is a 1,000 post rule on all threads (as Zeo mentioned) because the forum software starts getting bogged down after a large number of posts. Of course 999 vs. 1000 vs. 1006 isn't much difference but they have to draw the line somewhere.


Thanks for adding in Bobcamp1.  Since they do not give me the power to lock threads (lucky for us all) I can only do the "play nice" thing and get another thread going. I post here for free as do many of us so it seems only fair to not wait for a lock to make us do the right thing but just go ahead and do the right thing to make it easier for TCF to run.


----------



## GoHokies!

Cool.

Didn't know about the 1,000 post thread limit, may the other one die a happy natural death.

Thanks for keeping us up to date on this - I'm certainly interested, this could turn out to be a huge deal when all the folks that thought that ditching Tivo for Dish was a good idea.


----------



## shadowfax9x

Thanks for the personal invitation, zeo...

Maybe, we could just pass the hat around to see if we can increase the storage space of the original thread...


----------



## ZeoTiVo

shadowfax9x said:


> Thanks for the personal invitation, zeo...
> 
> Maybe, we could just pass the hat around to see if we can increase the storage space of the original thread...


it is not about storage space itself but the fact that this whole forum is largely databse driven. So when you click the link for a 1000 post thread it has a lot of stuff to keep track of versus a 30 post thread. It is just an inherit part of the design since 1000 posts thread are not typical except for long running discussions. The pricing change is at 880 or so posts and is the only other long thread here in coffee house. 1000 post threads are just rare in here.
In Happy Hour the Wii discussion thread found that 1000 post mark fairly regularly right after the release of the Wii. That is where I found out about the request to cap threads at 1000.

ETA - oh yah... and Drew2K's post in the original thread that reminded me

so just start talking about the trail and other related things, heck copy your post in here if you want. once people get off the new thread hassle and start talking the evil that is Echostar  it will be just like old times


----------



## drew2k

GoHokies! said:


> Cool.
> 
> Didn't know about the 1,000 post thread limit, may the other one die a happy natural death.


I guess my post about it in the original Coverage thread wasn't obvious enough.


----------



## GoHokies!

drew2k said:


> I guess my post about it in the original Coverage thread wasn't obvious enough.


I must have missed that when I was skimming over that "no content" section. 

Good thing this one is so much more on topic! 

Back on topic:
Down with Echostar!


----------



## HDTiVo

Once there is general agreement that a new thread should have been started, another new thread should be started.


----------



## ZeoTiVo

HDTiVo said:


> Once there is general agreement that a new thread should have been started, another new thread should be started.


these continuation threads typically have a page or so of nonsense then people finally get back to topic. frankly I do not care what thread the coverage is in as long as it is not sucking up TCF resources needlessly, but how could yet a third thread be of any help.

I guess the problem is there is currently no real news about the echostar/TiVo trial and tangenital stuff like the forgent patnet trials and so forth was being discussed.


----------



## 1283

At this rate, we'll need thread #3 pretty soon.


----------



## HDTiVo

The best solution is to ban for life everyone who ever posted in the first thread and then the whole thing just goes away.


----------



## ChuckyBox

c3 said:


> At this rate, we'll need thread #3 pretty soon.


Maybe we should all post in #3 now so that we don't fill up this thread so fast.


----------



## ZeoTiVo

so any update on the Echostar/TiVo trial or TiVo suing Forgent?


----------



## Stanley Rohner

JimSpence said:


> Does anyone really care about this?


Not really.


----------



## Johncv

Came across this, anyone have any opinion on what effect this might have on TiVo.

http://www.marketwatch.com/news/sto...643-4F82-4E71-9400-517C0CBC523F}&siteid=yhoof


----------



## 1283

Stanley Rohner said:


> Not really.


Then why did you bother to read and post in this thread? Nothing better to do?


----------



## HDTiVo

Johncv said:


> Came across this, anyone have any opinion on what effect this might have on TiVo.
> 
> http://www.marketwatch.com/news/sto...643-4F82-4E71-9400-517C0CBC523F}&siteid=yhoof


I think you are looking for the Bear Stearns web site.


----------



## Johncv

HDTiVo said:


> I think you are looking for the Bear Stearns web site.


No, that the correct web site.


----------



## HDTiVo

Johncv said:


> No, that the correct web site.


Yes it is, but you are still _looking _ for BS.


----------



## Stanley Rohner

c3 said:


> Then why did you bother to read and post in this thread? Nothing better to do?


Why did you bother to read my reply and post a reply? Nothing better to do?


----------



## drew2k

Stanley Rohner said:


> c3 said:
> 
> 
> 
> Then why did you bother to read and post in this thread? Nothing better to do?
> 
> 
> 
> Why did you bother to read my reply and post a reply? Nothing better to do?
Click to expand...

Welcome back to the 5th grade.


----------



## yunlin12

You assume they already finished the 5th grade?


----------



## Stanley Rohner

drew2k said:


> Welcome back to the 5th grade.


What ever you say bounces off me and sticks to you.


----------



## drew2k

Stanley Rohner said:


> What ever you say bounces off me and sticks to you.


Try again. You can't even get this right. It's:

I'm rubber, you're glue. Everything you say, bounces off of me and sticks to you.


----------



## Stanley Rohner

drew2k said:


> Try again. You can't even get this right. It's:
> 
> I'm rubber, you're glue. Everything you say, bounces off of me and sticks to you.


Oh yeah !! Why don't you make like a tree and get out of here !!


----------



## GoHokies!

Or put an egg in your shoe and leave!


----------



## drew2k

So what are the next significant dates to look forward to in the TiVo/Echostar Trial? What's next?


----------



## BlackBetty

I'm starting to feel that this thing will be tied up in courts for years to come and TiVo may never see the money its deserved. I really hope I am wrong.


----------



## timckelley

If Echostar refuses to pay what they owe, all their customers ought to leave them on principle.


----------



## ChuckyBox

drew2k said:


> So what are the next significant dates to look forward to in the TiVo/Echostar Trial? What's next?


TiVo's principal brief is due today. Echostar, which filed its principal brief last month, with then have until early July to file its reply brief. Then, in late July, TiVo files its reply brief. There may be a final filing date for supplemental materials, and there may or may not be oral arguments, though that is unlikely to add much time to the process (as it gives the judges a deadline to become familiar with the case). Anyway, following the filing of the final briefs, the time until a decision is reached will depend on the court's schedule. I'd think a couple of months, at least.


----------



## BlackBetty

ChuckyBox,
Can the court then decide that echostar should pay treble (tripple) damages? Or is that already decided on?

Also Echostar would have to pay interest as well, correct? Which should be in the millions.

I just found this info at the following link:
http://www.fool.com/investing/general/2007/05/29/before-the-call-rating-tivo.aspx



> Most people do not understand the value of TiVo's patent victory at the trial level against Echostar. That victory has about an 85% chance of being upheld at the appeal court level, and that verdict will most likely be rendered sometime between September 2007 and early 2008. At a minimum, TiVo will get the original damages of $73 million plus interest, which alone would be around $200 million by the end of calendar year 2007. On top of that, TiVo is seeking that the damage award be trebled (tripled) for willful infringement, which the jury decided in TiVo's favor, and which could force Echostar to pay up to $600 million.


Is this right???


----------



## ZeoTiVo

BlackBetty said:


> Can the court then decide that echostar should pay treble (tripple) damages? Or is that already decided on?


ChuckyBox can add more but basically the article is correct. The original court decision in Texas found for Willful Infringement by echostar which made for treble damages as punishment for the willful infringement. So that has already been decided on.

The whole ruling of course was appealed and that is the process being watched now. The federal court could overturn the willful infringement part and that would strike down the treble damages and it could overturn the whole thing. The 85% chance is for TiVo winning infringement as that is the typical percent of cases upheld on appeal I think. No idea what the odds are on willful infringement


----------



## timckelley

Suppose by year-end 2007, TiVo wins the big tamale and EchoStar owes them $600 million.

What's the next step? Can EchoStar still balk on forking over the $600 million? Are there any more stalling tactics left in their unethical bag of tricks?


----------



## ZeoTiVo

timckelley said:


> Suppose by year-end 2007, TiVo wins the big tamale and EchoStar owes them $600 million.
> 
> What's the next step? Can EchoStar still balk on forking over the $600 million? Are there any more stalling tactics left in their unethical bag of tricks?


yes, they coulkd enter into negotiations with TiVo just before the verdict and drag those out for as long as they can before introducing their surprise plan to replace any violating DVRs.
The thing here is that TiVo should have zero trust in Echostar so anything other than a verdict would have to be already written out and ironclad to have TiVo take interest in it, I think.


----------



## technomutt

BlackBetty said:


> Is this right???


I hope they are sued out of existence... after recently helping a friend migrate over from cable to Dish Network, I have to tell you they were the rudest, most arrogant customer service department I have ever dealt with in my life.

Long story short, my friend doesn't understand the technological differences between cable and satellite and was migrating from analog cable (no boxes) with two older Series 2 Tivos.

Dish Network asked during the sales pitch "is there any existing coax in the building", to which my friend responded "yes". HUGE MISTAKE.

They came and installed a dual tuner 322 receiver, which allows them to stack frequencies and run 2 separate TV's from a single set top box and reuse the existing (ancient) coax in the building. The distant TV has an RF remote controlling the 322.

In other words, NO FULL TIVO CONTROL ON THE SECOND TV IS POSSIBLE because there is no second set top box. We got it to work for the first controlling the 322.

What's worse, the customer service rep declared "we provided programming to both TVs. Therefore we have completed our contract. We do not support Tivo or any other 3rd party device." So now my friend is having to fork out additional installation fees to have a second truck roll and a second set top box installed.

These people were told up front: "two TV's and two Tivos". I believe the dual tuner 322 was installed *intentionally to cripple the Tivo service*.

Dish Network should be buried alive.


----------



## HiDefGator

Rogers just annouced they have dropped their request for treble damages. I guess they wiould really like this thing to settle so they can get the check.


----------



## timckelley

HiDefGator said:


> Rogers just annouced they have dropped their request for treble damages. I guess they wiould really like this thing to settle so they can get the check.


Darn. We need Echostar to be buried alive.


----------



## drew2k

ChuckyBox said:


> TiVo's principal brief is due today. Echostar, which filed its principal brief last month, with then have until early July to file its reply brief. Then, in late July, TiVo files its reply brief. There may be a final filing date for supplemental materials, and there may or may not be oral arguments, though that is unlikely to add much time to the process (as it gives the judges a deadline to become familiar with the case). Anyway, following the filing of the final briefs, the time until a decision is reached will depend on the court's schedule. I'd think a couple of months, at least.


A "couple of months" after July would be September, right when speculation has DirecTV flipping on over 75 new national HD channels. That would be a doubly whammy for Echostar: get their appeal denied AND see competitor DirecTV crow over all those new HD channels! 



HiDefGator said:


> Rogers just annouced they have dropped their request for treble damages. I guess they wiould really like this thing to settle so they can get the check.


Now, that's a let down.


----------



## ChuckyBox

timckelley said:


> Darn. We need Echostar to be buried alive.


TiVo isn't really dropping their goal of triple damages, they are just realizing that the appeals court isn't the way to get them. If the appeal goes TiVo's way, and the willfulness verdict is confirmed, then they can ask the Texas judge to reconsider his earlier verdict in light of the new ruling (which he will do, since his reason for not awarding enhanced damages in the first place was the exclusion of evidence with respect to Echostar's willfulness). If the willfulness verdict is overturned on appeal (but the infringement verdict is upheld -- the most likely scenario), then TiVo goes back to Texas with the original damages and the injunction. If the judge decides to retry the willfulness issue, and TiVo wins, they can get their triple damages then. If they lose at that point, it won't make any difference -- they'll have what they have now. Finally, if TiVo loses more broadly on appeal, they'll have to go redo the trial anyway, willfulness and all.

In other words, all roads lead back to Texas, and that judge will ultimately decide if triple damages are warranted.

Also, TiVo has to go back to Texas to ask for damages and interest from the point of the final judgement through the appeal (assuming TiVo wins). Since those damages have not yet been determined, they may be tripled in any case (it would be hard to argue that Echostar's current infringement is not willful).


----------



## shadowfax9x

TiVo has Echostar between the rock and the hard place and Tom Rogers knows it...



> The other interesting development in this case is that AT&T recently attempted to file an Amicus brief supporting EchoStar which speaks to how others perceive the importance of this case.


Highly probable that AT&T is telling Echostar to put this entire matter to rest or they can kiss the video cable deal bye-bye...


----------



## BlackBetty

I don't understand this qoute:



> At a minimum, TiVo will get the original damages of $73 million plus interest, which alone would be around $200 million by the end of calendar year 2007


How the heck would the original $73M gain $127M in interest? Wouldn't it be around a years worth of interest on the $73M? I wish I could get a return on investment like that!!


----------



## ChuckyBox

BlackBetty said:


> How the heck would the original $73M gain $127M in interest? Wouldn't it be around a years worth of interest on the $73M? I wish I could get a return on investment like that!!


That never made sense to me, either. But the original award was enhanced by interest and ongoing damages (for the time between the jury's verdict and the final judgment), bringing it to over $80 million. If you consider ongoing damages plus interest from that time forward, the amount will likely be in the $140 million to $150 million range by the end of this year.


----------



## davezatz

bidger said:


> It would seem that we're on the verge of some kind of resolution or closure


In yesterday's conference call, TiVo's counsel suggested it would wrap towards the end of this year or early next year. Of course nobody knows for sure, but there's one prediction or us.


----------



## Justin Thyme

HiDefGator said:


> Rogers just annouced they have dropped their request for treble damages.


Source?


----------



## davezatz

Justin Thyme said:


> Source?


http://seekingalpha.com/article/36891



> Alan Gould - Natexis Bleichroeder
> 
> Tom, if you can clarify one thing on the litigation. You said that you have taken out the enhanced damages portion of the case. Could you explain that? Can you tell us a little bit of what was in your reply document?
> 
> Tom Rogers
> 
> Well, we have our general counsel Matt Zinn here, and I'll let Matt explain that.
> 
> Matt Zinn
> 
> Our cross appeal concerned the judge's decision not to award us enhanced damages due to the jury's finding that EchoStar's infringement of our patent was willful, we decided well dismiss the cross appeal because we wanted to simplify the issues in the case and speed up the timing of the resolution of the case.
> 
> So in terms of timing, we now expect the briefing to be complete in the middle of next month with oral arguments probably scheduled for late summer or early fall, and a decision from the Federal Circuit either later this year or worst case, early next year. So we think timeliness is more important than trying to persuade the Federal Circuit to find that the judge made a clear error in not granting us enhanced damages.


----------



## Justin Thyme

Thanks Dave. BTW- nice job you are doing with your blog esp the FIOS coverage has been interesting.

OK I see Zinn saying it is being dropped only from the Federal appeal in order to speed it along. They didn't say anything about dropping the issue entirely from their future legal proceedings with Echostar.

Which is what Chucky said. I'm glad someone can is willing to study these legal machinations and present a succinct picture of what's going on.


----------



## Greg Bimson

Remember that the original award from the jury was almost $74 million, and that was to cover the period from the start date of the lawsuit filing until the day the verdict was rendered. That would be from January, 2004 to April, 2006.

Then the court ruled in August the total was now at $89.6 million. So in about three months, Tivo raked in an additional $5 million a month. So if the $5 million a month is linear, by August, 2007 the total will be at about $150 million.

One must realize that Dish Network has been continually selling the infringing DVR's. So if the appeal is denied, the Texas judge then gets to amend the dollar amount to the total amount of infringing products plus interest on the original judgment.

Yes, this could get rather large.


----------



## timckelley

Echostar needs to pay pay, pay, PAYYYYY.  And it needs to hurt, too.


----------



## classicX

> Matt Zinn
> 
> Our cross appeal concerned the judge's decision not to award us enhanced damages due to the jury's finding that EchoStar's infringement of our patent was willful, we decided well dismiss the cross appeal because we wanted to simplify the issues in the case and speed up the timing of the resolution of the case.


I read this as: "We really need the money and want to hurry up and get this overwith so we can get our check."


----------



## ZeoTiVo

classicX said:


> I read this as: "We really need the money and want to hurry up and get this overwith so we can get our check."


or - we really would like to wrap up some more deals and want to get this ruling in our favor done so there is no question about patents during the contract negotiations


----------



## ChuckyBox

ZeoTiVo said:


> or - we really would like to wrap up some more deals and want to get this ruling in our favor done so there is no question about patents during the contract negotiations


or - we never intended to do what we said, but we wanted to keep Echostar off balance by creating a misdirection.


----------



## MichaelK

question-

assuming tivo prevails after all the appeals and DISH tries to get the supreme court to hear the case (you know that's the end result) - does DISH owe the treble damages from the date of the original verdict forward- since at that point they "knew" they were infringing?


----------



## ChuckyBox

MichaelK said:


> assuming tivo prevails after all the appeals and DISH tries to get the supreme court to hear the case (you know that's the end result) - does DISH owe the treble damages from the date of the original verdict forward- since at that point they "knew" they were infringing?


That will be up to the judge who awards the damages. If he feels their appeal had little merit, and they've done nothing to remediate the infringement, he is likely to be less than sympathetic to their situation. But, like I said earlier, if everything goes TiVo's way, they can motion for a reconsideration of the original judgment and get the whole thing tripled.


----------



## Curtis

MichaelK said:


> question-
> 
> assuming tivo prevails after all the appeals and DISH tries to get the supreme court to hear the case (you know that's the end result) - does DISH owe the treble damages from the date of the original verdict forward- since at that point they "knew" they were infringing?


The court doesn't even know they were infringing. That's why the judgement is in abeyance.


----------



## ChuckyBox

The court docket now lists Echostar's reply brief due on 6/13 -- that's considerably sooner than I was led to believe by the court's online documentation. That means TiVo's reply will be due about two weeks later (i.e., the end of June).

Hmm, on second thought, maybe I wasn't wrong. I believe that by dropping their cross-appeal, TiVo has cut the length of time for Echostar to reply from 40 days to 14.


----------



## drew2k

ChuckyBox said:


> Hmm, on second thought, maybe I wasn't wrong. I believe that by dropping their cross-appeal, TiVo has cut the length of time for Echostar to reply from 40 days to 14.


I wonder if TiVo caught Echostar's lawyer's napping ...


----------



## Redux

drew2k said:


> I wonder if TiVo caught Echostar's lawyer's napping


Outside of Hustler magazine's whasisname, I doubt anybody has more aggressive, anal lawyers than Echostar. Not possible.


----------



## shadowfax9x

ChuckyBox said:


> The court docket now lists Echostar's reply brief due on 6/13 -- that's considerably sooner than I was led to believe by the court's online documentation. That means TiVo's reply will be due about two weeks later (i.e., the end of June).


The court dates posted on the PACER Case Management System is also confusing the hell out of me...

Rule 31 - Federal Rules of Appellant Procedure:

a) Appellants (Echostar) Blue Brief is due within 40 days of the briefing notice.

b) Appellees (TiVo) Red Brief is due within 33 days from the date of the certificate of service of the Appellants (Blue) Brief.

c) Appellants (Echostar) Reply Gray Brief is due within 17 days of the certificate of service of the Appellees (Red) Brief.

Maybe, this has something to do with it: *Notice to Users of PACER- - - - - 
Entry Numbers may be different due to upgrades made recently to the case management system.


----------



## juanian

I'm not a fan of Dish or DirecTV, but is there a worry that the government might be drawn in and do something? Since Dish is the only real satellite competition to DirecTV, and if a payout of a "large enough amount" could cause Dish to fold, would Dish strike up some sympathy in the government to cause any payment to TiVo to be reduced? (Hey, I'm certainly not versed in anti-trust, but just a thought.)


----------



## yunlin12

Echostar (Dish)'s market cap is 22 Billion (with a B), Tivo's patent case is not going to make them close shop.


----------



## juanian

(shows what *I* know!)


----------



## TREND_WIRE

Alright guys! 

Thanks for the contributions to the topic. Stipulating, I believe the following have been the significant past and upcoming scheduled dates:

04/17/2007 -- Echostar Brief due
05/27/2007 -- TiVo Brief due

07/06/2007 -- Echostar's response due
07/20/2007 -- TiVo response due

We were able to read about Echostar brief. Does anyone have any info, or link in regard to TiVos brief from 5/7 ? 

Thanks


----------



## Justin Thyme

In any case, it is not in Tivo's interests to see Dish crippled. You be the Tivo exec. Which would you rather have- the cash or a favorable DVR deal?

I'd love to be a fly on the wall for the settlement negotiations, but for example, 
Tivo owns and administers the subscriptions
Tivo is exclusive supplier of DVRs. Long term contract
Tivo controls the DVR spec with no veto rights from Dish except concerning security of the network
Dish agrees to a phase in of targetted advertisement insertion into their programming based on Tivo technology. Phase in requiring new structures for content deals is complete for all DVR customers by 2012. Tivo owns administration of advertisement insertion contracts, and Tivo pays out to Dish as and content owners their percentage of advertisement revenues.
Dish's Demand video other than current PPV is through TivoCast
No restrictions on TTG, MRV, or Hidef transfers
As a face saving item for Echostar, Tivo relents to the demand that Ergen get a smoochie from TivoShanan. 
Demonstrating to the world how much better it could be if we just went back to being friends.


----------



## HDTiVo

Justin Thyme said:


> In any case, it is not in Tivo's interests to see Dish crippled. You be the Tivo exec. Which would you rather have- the cash or a favorable DVR deal?
> 
> Demonstrating to the world how much better it could be if we just went back to being friends.


That's right, but the people at TiVo are out of their F*ing minds and they found a dozen hillbillies to egg them on.


----------



## GoHokies!

HDTiVo said:


> That's right, but the people at TiVo are out of their F*ing minds and they found a dozen hillbillies to egg them on.


  
You're going to have to clarify what the hell you're talking about here.


----------



## shadowfax9x

TREND_WIRE said:


> Does anyone have any info, or link in regard to TiVos brief from 5/7 ?


Back door it through the USPTO website: (Tivo's 73 Page Brief)

http://portal.uspto.gov/external/portal/!ut/p/kcxml/04_Sj9SPykssy0xPLMnMz0vM0Y_QjzKLN4gPMATJgFieAfqRqCLGpugijnABX4_83FT9IKBEpDlQxNDCRz8qJzU9MblSP1jfWz9AvyA3NDSi3NsRAHxEBJg!/delta/base64xml/L0lJSk03dWlDU1lKSi9vQXd3QUFNWWdBQ0VJUWhDRUVJaEZLQSEvNEZHZ2RZbktKMEZSb1hmckNIZGgvN18wXzE4TC83L3NhLmdldEJpYg!!?selectedTab=ifwtab&isSubmitted=isSubmitted&dosnum=90007750&public_selectedSearchOption=


----------



## mtchamp

Above link may not work. It didn't for me. Use this one and select "Public PAIR" put case number "90007750" in search box. This will take you to the TiVo reexam. Click on "Image File Wrapper" and then you can select any documents filed for viewing. On 06/08/07 the breifs for both Echostar and TiVo were filed. TiVo is the 73 page brief listed as "Notice of concurrent proceeding(s)"

http://portal.uspto.gov/external/portal/home


----------



## ZeoTiVo

shadowfax9x said:


> Back door it through the USPTO website: (Tivo's 73 Page Brief)
> 
> http://portal.uspto.gov/external/portal/!ut/p/kcxml/04_Sj9SPykssy0xPLMnMz0vM0Y_QjzKLN4gPMATJgFieAfqRqCLGpugijnABX4_83FT9IKBEpDlQxNDCRz8qJzU9MblSP1jfWz9AvyA3NDSi3NsRAHxEBJg!/delta/base64xml/L0lJSk03dWlDU1lKSi9vQXd3QUFNWWdBQ0VJUWhDRUVJaEZLQSEvNEZHZ2RZbktKMEZSb1hmckNIZGgvN18wXzE4TC83L3NhLmdldEJpYg!!?selectedTab=ifwtab&isSubmitted=isSubmitted&dosnum=90007750&public_selectedSearchOption=


Shadowfax9x. I appreciate you contributing on the coverage but you need to realize that you seem to have more access on these sites then us general public types do.


----------



## shadowfax9x

Try entering the file number: 90007750

Then click the "Image File Wrapper" on the tool bar and you'll see a list of entries. Look for the item "Notice of concurrent proceeding(s)... TiVo's red brief is located in the 73 page doc listed...


----------



## MonroeEfford

Then it's on to oral arguments. It's hard to imagine how this could drag further than this Fall on ruling. If it were anything other than the court system, it would be this summer ruling.


----------



## ChuckyBox

MonroeEfford said:


> Isn't Echo's reply on 6/25 the last brief?
> Then it's on to oral arguments.


That's still unclear. If TiVo gets another reply, it would be due 14 days after Echostar's.


----------



## MonroeEfford

Believe that Tivo would only be allowed response if the cross-appeal were still active...since it was dropped, Echo gray brief the last before oral arguments...but I'm no lawyer...I'm merely Louann Poovy's boyfried before Gomer


----------



## TREND_WIRE

>>or - we really would like to wrap up some more deals<<

Actually, the harm and damages Echostar is causing to TiVo, is not what TiVo can obtain from Echostar-- say 120 to 600 millions, but what TiVo is loosing from the rest of the DVR industry, - pending a final decision that has been prolonged by Echostar intentionally. So that, I believe Echostar qualifies to pay TIvo treble damages. By licensing a secured time warp system to the industry TiVo assures itself as a DVR operating system, similar to windows for PC. BIG HARM. Judges may see that harm Echostar has caused to TiVo.


----------



## MonroeEfford

Looks like no more briefings...shouldn't it go to oral arguments as next step after Appendix?


----------



## Hew

How long do oral arguments in a patent appeal usually take? Does this mean that there may be a decision sometime in July?


----------



## ChuckyBox

Hew said:


> How long do oral arguments in a patent appeal usually take? Does this mean that there may be a decision sometime in July?


No. The court has a heavy schedule. The arguments themselves will just be on one day, likely for just a couple of hours, but the judges need time to read the docs and do whatever research they're going to do beforehand. It will probably be three months or so before arguments are heard. Then the judges will do their thing for a while again and issue a decision when they get good and ready. I would be surprised to hear anything before October, but more likely November or December. But you never know.


----------



## shadowfax9x

There will be a 15 minute stop clock running for Echostar to present its oral argument. This time limit includes interruptions made by the panel of judges with their questions directed to Echostar's counsel... TiVo will not participate in the oral argument session as they have dropped their cross appeal...

I just hope that Dave Z. is in attendance while wearing his TiVo antennae and provide us an immediate first hand account...


----------



## shadowfax9x

Reference

146


----------



## drew2k

shadowfax9x said:


> Reference
> 
> 146


IANAL, so ... Translation please? Or context?

Thanks.


----------



## shadowfax9x

The case information is not readily available from the Federal Circuit on PACER and RACER recently went bankrupt...

Since we are in a black out phase, I can only surmise that Echostar is still asking the Federal Circuit to find that District Court Judge Folsom's instruction to the jury was erroneous and now asking the Federal Circuit to question the validity of TiVo's patents..

The Federal Courts and USPTO are governed by two separate branches of government and they do not have to jump through hoops when the other beckons... IMO, Echostar realizes that they are whizzing in a wind if they expect the PTO to find TiVo's patents invalid... In an attempt to further delay the eventual outcome, they are now asking the Federal Circuit to begin their own independent de novo review of TiVo's patents in their joint appendix... I seriously doubt if the Federal Circuit will oblige Echostar by granting a new review, but I suppose it is possible... 

There is an interesting court entry made on 7/6/07... TiVo's attorneys have requested that the oral argument phase be delayed until October so it may mean that we're getting close to having this case resolved... However, I'm at a loss as to why TiVo is now the one asking for a one month delay...


----------



## ZeoTiVo

shadowfax9x said:


> so it may mean that we're getting close to having this case resolved... However, I'm at a loss as to why TiVo is now the one asking for a one month delay...


possible negotiations with echostar...


----------



## classicX

Or a possible release of the S3 Lite in November, and anticipate an injunction on Echostar from using their DVRs - which means hundreds, thousands of Echostar customers clamoring to find a decent DVR alternative. If there is a such a decision just before the S3 Lite is released, Tivo's advertising dollars, as short as that stack is, becomes that much more effective.

With a decision right before the S3 Lite is released:

1) Echostar customer sees a Tivo commercial or internet ad
2) Echostar's DVR service is discontinued until further notice
3) Customer is completely angry and is in an "emotional" buying mood
4) The S3 Lite has just hit the market
5) Customer decides to buy two or three or more
6) PROFIT

If the decision comes before the S3 Lite is released, start after step 3:

4) The customer sees the $600-800 price tag of the S3, the same customer who probably already knows about the S3 and went with Dish instead (which includes me), and opts for cable's DVR instead.

*And / Or . . .*

Tivo is expecting to enable some very desirable features (i.e. MRV, TTG, etc.) but won't have them ready until October - they wouldn't want all those jilted Dish customers to decide against HD Tivos because the are stuck to the room in which it was recorded. They can pay a lot less to their cable company for that.


----------



## dswallow

classicX said:


> Or a possible release of the S3 Lite in November, and anticipate an injunction on Echostar from using their DVRs - which means hundreds, thousands of Echostar customers clamoring to find a decent DVR alternative. If there is a such a decision just before the S3 Lite is released, Tivo's advertising dollars, as short as that stack is, becomes that much more effective.
> 
> With a decision right before the S3 Lite is released:
> 
> 1) Echostar customer sees a Tivo commercial or internet ad
> 2) Echostar's DVR service is discontinued until further notice
> 3) Customer is completely angry and is in an "emotional" buying mood
> 4) The S3 Lite has just hit the market
> 5) Customer decides to buy two or three or more
> 6) PROFIT
> 
> If the decision comes before the S3 Lite is released, start after step 3:
> 
> 4) The customer sees the $600-800 price tag of the S3, the same customer who probably already knows about the S3 and went with Dish instead (which includes me), and opts for cable's DVR instead.
> 
> *And / Or . . .*
> 
> Tivo is expecting to enable some very desirable features (i.e. MRV, TTG, etc.) but won't have them ready until October - they wouldn't want all those jilted Dish customers to decide against HD Tivos because the are stuck to the room in which it was recorded. They can pay a lot less to their cable company for that.


The Series 3 is useless for a satellite user. There's not even support for SD video encoding and IR/serial control of a receiver.


----------



## SullyND

Or the lawyer who they want to give the argument is not available until then.


----------



## TK421

dswallow said:


> The Series 3 is useless for a satellite user. There's not even support for SD video encoding and IR/serial control of a receiver.


I think he was meaning they'd move from Dish to cable.


----------



## ChuckyBox

SullyND said:


> Or the lawyer who they want to give the argument is not available until then.


The most likely explanation. It can't be negotiations, because it is July and it would be silly to take pressure off of Echostar by giving them an extra month. And it can't be for S3 lite sales, because the decision is unlikely until some time after the arguments. It could, possibly, be to give Comcast (and Cox) a little more time to get things in place before they shut down Echostar and those guys start absorbing Echostar defectors. But most likely is just the lawyers' schedules.


----------



## classicX

TK421 said:


> I think he was meaning they'd move from Dish to cable.


Right.


----------



## steve614

ChuckyBox said:


> ...but more likely November or December.


IMO, that is being REALLY optimistic.


----------



## shadowfax9x

Federal Circuit Pending Argument Calendar for September...

Apparently the court granted Tivo's request to delay the oral argument phase as TiVo v. Echostar isn't scheduled to be heard in September....


----------



## 20TIL6

shadowfax9x said:


> Federal Circuit Pending Argument Calendar for September...
> 
> Apparently the court granted Tivo's request to delay the oral argument phase as TiVo v. Echostar isn't scheduled to be heard in September....


What's your take on that? This seems to be the first time TiVo has asked for a delay. It's been E* asking up to this point.

Do you think it might be signaling a settlement between the two, and E* knew that it basically has run out of "delay" cards? Maybe as part of talks in private, E* has asked TiVo to request the delay? I'm just wondering, because I cannot imagine that TiVo would really need more time.


----------



## 20TIL6

Sorry, should have read further up the thread. Already being discussed.


----------



## classicX

Well, since the TivoHD is out, I guess my wild and crazy assumption was wrong.  So negotiations with E* seem most likely. Nothin' says lovin like a big cash settlement and a deal to provide software for the boxes...


----------



## timckelley

TiVo should settle for nothing less than Echostar turning of all it's assets to TiVo, and going backrupt.  

Or maybe better would be that Echostar has to start selling TiVos instead of their own DVRs, handing over 90% of the profits as royalties to TiVo. Plus extremely heavy fines to be paid to TiVo for the years of DVR sales they've already done. The amount of the fine needs to be as heavy as possible without actually causing Echostar to close its doors, so that TiVo can still collect future royalties.


----------



## classicX

If that happens then my rates go up. Or do you think they'd forgo passing that bill on to the customers?

At least if they change my rates, I can get out of my commitment.


----------



## shadowfax9x

What a revolting development !!!

If only Mama Barton would have sprung for a box of crayons and a coloring book for little Jimmy --- and that's all that I have to say about that... 

Whiskey River take my mind...


----------



## ZeoTiVo

shadowfax9x said:


> What a revolting development !!!


What revolting development ???


----------



## shadowfax9x

ZeoTiVo said:


> What revolting development ???


While trying to figure out the root cause for the recent steep decline in TiVo's stock price, I called the USPTO on Monday... I was connected to a gentleman who was cordial enough to answer every question that I had on my mind...

Question: What is the status of file #90007750?

[Answer: It has been issued a Final Rejection by one of our hearing officers...

Question: and what exactly does that mean?

Answer: The hearing officer determined that the prior art work submitted does not support some of the claims contained in the patent application...

Question: and what exactly does that mean?

Answer: It is the opinion of the hearing officer that there aspects to the patent that are obvious and not novel...

Question: Are you telling me that the patent is wothless and cannot be protected?

Answer: NO! I'm telling you that some of the claims in the patent may not hold up in court if challenged. 

Question: Does the hearing officer who issued the Final Rejection have the final word in this patent reexam?

Answer: No! The patent holder can appeal the decision made by the hearing officer to the USPTO Board of Appeals and Interferences. 

Question: Then what?

Answer: If that isn't successful, the Patent holder can appeal the Board of Appeals decision to The U.S. Court of Appeals for the Federal Circuit in Washington.

Comment: BUMMER!!! You make it sound like the '389 patent has more holes than a wedge of Swiss cheese...

Answer: Those are your words, not mine. Cheer up! A number of claims in the patent were reaffirmed by the hearing officer.

Question: Have you noticed if there is now a 2008 Mercedes Benz parked in the hearing officers reserved parking space?

Answer: ::Laughing:: Have a good day, sir, and do not hesitate to call again if you have any more questions.

Question: Can I post this information on a blog?

Anxwer: It is public information, but why don't you wait until the final rejection image is posted on our website.

Comment: Will do... Thanks

--------------------------------------------------------------------------------------------------------
I only wish that the call would have been made by one of the many techno-nerds that camp out on this thread. I gave the condensed version of the conversation because I was completely shut out when he started throwing around technical terms like v stream?, a stream?, Nelly's pants?, etc. etc.


----------



## yunlin12

Yeah, same as before, the HW claims are rejected, the software claims are affirmed. So E* still infringed, and the court case can go on. This would rule out Tivo suing other DVR HW vendors (such as Motorola), but DVR SW vendors (such as Motorola) are still on the hook.


----------



## ZeoTiVo

shadowfax9x said:


> Comment: BUMMER!!! You make it sound like the '389 patent has more holes than a wedge of Swiss cheese...
> 
> Answer: Those are your words, not mine. Cheer up! A number of claims in the patent were reaffirmed by the hearing officer.


like yunlin12 said - this is not new stuff, but just a repeat of what happened during trial. It is the old - how can you patent something obvious like record a show onto a hard drive instead of a tape. Very true but the specifics of the Tivo patent they are protecting get into those hoary technical details on how to do that real time from two encoders to one hard drive while playing something else back and perhaps even copying something else to/from the drive.

Combined with the UI this is what gives TiVo a competitive edge since they can do this in an inexepnsive box while being rock solid. Not a revolting development at all but a great clarifier of the specifics which would just serve to speed up any infringemnet cases


----------



## samo

ZeoTiVo said:


> like yunlin12 said - this is not new stuff, but just a repeat of what happened during trial. It is the old - how can you patent something obvious like record a show onto a hard drive instead of a tape. Very true but the specifics of the Tivo patent they are protecting get into those hoary technical details on how to do that real time from two encoders to one hard drive while playing something else back and perhaps even copying something else to/from the drive.
> 
> Combined with the UI this is what gives TiVo a competitive edge since they can do this in an inexepnsive box while being rock solid. Not a revolting development at all but a great clarifier of the specifics which would just serve to speed up any infringemnet cases


Not so fast. Jury convicted E* for infringing on 16 claims. Only 2 of them were upheld by USPO. Makes sense to me that appeals court needs to take it into consideration and both E* and TiVo need more time to prepare for arguments due to the new development.


----------



## ChuckyBox

samo said:


> Not so fast. Jury convicted E* for infringing on 16 claims.


9.


> Makes sense to me that appeals court needs to take it into consideration and both E* and TiVo need more time to prepare for arguments due to the new development.


Nope. The court won't even consider it. From the court's perspective the patent and all of its claims are valid until TiVo exhausts all of its appeals. That's at least a couple of years off. The appeals court will only consider what happened during the case in Texas.


----------



## samo

ChuckyBox said:


> Nope. The court won't even consider it. From the court's perspective the patent and all of its claims are valid until TiVo exhausts all of its appeals. That's at least a couple of years off. The appeals court will only consider what happened during the case in Texas.


IANAL, so I'm sure you are right. Common sense is not how legal system works. So appeals court will wait a year or two to review validity of TiVo patents (assuming TiVo will take an appeal all the way to Fed court), while they have a case on hands that would allow them to rule right away. Not surprising, but backwards and stupid IMHO.


----------



## ZeoTiVo

samo said:


> IANAL, so I'm sure you are right. Common sense is not how legal system works. So appeals court will wait a year or two to review validity of TiVo patents (assuming TiVo will take an appeal all the way to Fed court), while they have a case on hands that would allow them to rule right away. Not surprising, but backwards and stupid IMHO.


kind of as backwards though as saying E* did not willfully infringe because the patents that were legal and on record at the time later were overturned.

Kind of like - I was not speeding officer because I know there is a bill in the assembly to raise the speed limit on this road.


----------



## shady

ZeoTiVo said:


> kind of as backwards though as saying E* did not willfully infringe because the patents that were legal and on record at the time later were overturned.
> 
> Kind of like - I was not speeding officer because I know there is a bill in the assembly to raise the speed limit on this road.


I was thinking exactly the same thing, but couldn't think of a good analogy like you did


----------



## samo

ZeoTiVo said:


> kind of as backwards though as saying E* did not willfully infringe because the patents that were legal and on record at the time later were overturned.
> 
> Kind of like - I was not speeding officer because I know there is a bill in the assembly to raise the speed limit on this road.


Hey, let me have fun with analogy too.  Some overworked, underpaid worker from DOT mistakenly put 25 MPH signs on a highway. You were speeding, ignoring these signs because you knew it in your hart that that was a mistake and your wife agreed with you. You got a ticket, you went to court and DOT representative tells the court that sign was put on a highway by mistake. What should judge do? Uphold the ticket because you ignored the posted speed limit, or use common sense and discharge the ticket? Especially if Supreme court just ruled that 25 MPH sign on a highway is obviously wrong, creates traffic jams, and should never be installed in a future.


----------



## 1283

samo said:


> Especially if Supreme court just ruled that 25 MPH sign on a highway is .....


That's not possible because the 25MPH sign did not appeal.


----------



## shadowfax9x

We need to remember that TiVo sued Echostar for willful infringement of the Time Warping patent '389 - claims #1, #31, #32 and #61 and was subsequently awarded $90 million by the Texas court... 

Under reexamanation, claims #31 and #61 passed muster with the USPTO hearing officer and claims #1 and #32 were rejected... I've always believed that claim #1 was TiVo's big trump card and it troubles me that it was rejected by the USPTO...


----------



## ZeoTiVo

samo said:


> Hey, let me have fun with analogy too.  Some overworked, underpaid worker from DOT mistakenly put 25 MPH signs on a highway. *You were speeding*, ignoring these signs because .


at the end of the day, you were still going faster than the posted speed limit - which is how the law is written to mitigate sign mix ups. So in your add on to the analogy the judge could find you did speed and be well within the law. Of course a traffic judge also has wide ranging powers to dismiss cases as well within his judgement. Such is traffic court and minor offenses.

I of course am not up on patent infringement law to know what discretion judges have to use such after the fact knowledge in the ruling on the appeall. Still at the end of the day, E* was found guilty of knowing about the then standing Tivo patents and wilfully infringing on them. I assume the judge can be well within the law to deny the appeall based on the facts as presented at the original trial.

I recall TiVo dropped the willful part from their end of the appeall. Perhaps that was to help the judge feel comfortable denying the rest of the appeall.


----------



## ZeoTiVo

shadowfax9x said:


> We need to remember that TiVo sued Echostar for willful infringement of the Time Warping patent '389 - claims #1, #31, #32 and #61 and was subsequently awarded $90 million by the Texas court...
> 
> Under reexamanation, claims #31 and #61 passed muster with the USPTO hearing officer and claims #1 and #32 were rejected... I've always believed that claim #1 was TiVo's big trump card and it troubles me that it was rejected by the USPTO...


what was claim #1? I do not recall what the numbers related to.


----------



## ufo4sale

Wouldn't the time warp patent be the most important patent?


----------



## samo

ZeoTiVo said:


> what was claim #1? I do not recall what the numbers related to.


Assuming shadowfax is correct on rejected-accepted claims numbers.
Rejected:


> 1. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> tuning said TV signals to a specific program;
> providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;
> providing a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;
> storing said video and audio components on a storage device;
> providing at least one Output Section, wherein said Output Section extracts said video and audio components from said storage device;
> wherein said Output Section assembles said video and audio components into an MPEG stream;
> wherein said Output Section sends said MPEG stream to a decoder;
> wherein said decoder converts said MPEG stream into TV output signals;
> wherein said decoder delivers said TV output signals to a TV receiver; and
> accepting control commands from a user, wherein said control commands are sent through the system and affect the flow of said MPEG stream.





> 32. An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> a module for accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> a module for tuning said TV signals to a specific program;
> at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;
> a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;
> a module for storing said video and audio components on a storage device;
> at least one Output Section, wherein said Output Section extracts said video and audio components from said storage device;
> wherein said Output Section assembles said video and audio components into an MPEG stream;
> wherein said Output Section sends said MPEG stream to a decoder;
> wherein said decoder converts said MPEG stream into TV output signals;
> wherein said decoder delivers said TV output signals to a TV receiver; and accepting control commands from a user, wherein said control commands are sent through the system and affect the flow of said MPEG stream.


Standing:


> 31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> providing a source object, wherein said source object extracts video and audio data from said physical data source;
> providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> wherein said source object is automatically flow controlled by said transform object;
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> wherein said sink object is automatically flow controlled by said transform object;
> providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> wherein said control object sends flow command events to said source, transform, and sink objects





> 61. An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> a source object, wherein said source object extracts video and audio data from said physical data source;
> a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> wherein said source object is automatically flow controlled by said transform object;
> a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> wherein said sink object is automatically flow controlled by said transform object;
> a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> wherein said control object sends flow command events to said source, transform, and sink objects.


----------



## ufo4sale

So does all those claims fall under the same patent?


----------



## ZeoTiVo

samo said:


> Assuming shadowfax is correct on rejected-accepted claims numbers.
> Rejected:
> 
> Standing:


Thanks Samo.
I think the first two you showed as rejected, utilizing shadowfax9x info, are indeed the ones that via technical jargon really amounted to record TV on a hard drive in MPEG format and then play it back. The media switch mentioned in the jargon is important to TiVo as a competitive advantage but the two patents are not directly about it.

the second two are the ones that went into more technical detail about the how of it and are based on what TiVo came up with initially to do a DVR functionality in an inexpensive but solid way.

I stand by my initial assumption that this does not really hurt TiVo' specific case with Dish and just clarifies exactly what would be infringing in anyone Else's DVR. I never expected the end result to be that TiVo had a patent that covered any DVR out there. I just expected it to cover copy cat stuff and more importantly set a precedent of TiVo protecting its patents for competitive advantage.

I ma still pulling for treble damages just because Ergin(oops) is such an ahole business man


----------



## Phantom Gremlin

ZeoTiVo said:


> I ma still pulling for treble damages just because Barton is such an ahole business man


Did you mean to say that Ergen (rather than Barton) is an ahole?


----------



## BlackBetty

I'm confused. What happened recently and what does it all mean?


----------



## Rolander

BlackBetty said:


> I'm confused. What happened recently and what does it all mean?


I think it boils down to they didnt' uphold the hardware specific parts, while they did uphold the software specific parts.

If I'm understanding that correctly that's not all that bad given the direction they are going with Comcast, etc.

TiVo would probably do better if you could just run it on any hardware. People seem to not mind licensing fees for software where fees for components bugs them.


----------



## ChuckyBox

samo said:


> So appeals court will wait a year or two to review validity of TiVo patents (assuming TiVo will take an appeal all the way to Fed court), while they have a case on hands that would allow them to rule right away. Not surprising, but backwards and stupid IMHO.


I'm not sure I agree or disagree with you on that point -- in some ways it would seem to make sense to do everything together, but in other respects they are completely different cases, judged on a completely different set of statutes and proceedings.

It is beside the point, in any event, because TiVo is nowhere near exhausting its procedural recourse with the patent office itself. There is an entire appeal process within the patent office before the thing could go to federal appeals court. Given that it took the examiner nearly a year to go from his initial action to his "final" action, I wouldn't look for a resolution any time soon. The Echostar appeal will be ruled upon within a few months or so, long before the patent appeal could get there.


----------



## SeattleBrad

There are buyout rumors again. This time they're saying Blockbuster or Microsoft.


----------



## davezatz

Blockbuster? That's a weird one... guess the Movielink thing stirred everyone up. Does Blockbuster even have the money it might take to purchase TiVo (assuming they were for sale)?


----------



## timckelley

I guess I don't mind if TiVo gets bought out, so long as they win their suit against Echostar and Echostar pays until it hurts.


----------



## BlackBetty

timckelley said:


> I guess I don't mind if TiVo gets bought out, so long as they win their suit against Echostar and Echostar pays until it hurts.


I mind if TiVo gets bought out! Unless it was a company that was an innovator. A google or an apple, now that I wouldn't mind.


----------



## ariel1

No way it is Blockbuster, Tivo is almost as big as blockbuster marketcap wise.


----------



## rbreding

EDIT: Looks like something of the sort was already discussed regarding the latest developments....I will leave this newswire post however...

Not sure why it hasn't been posted here yet....there was some news:



> UPDATE: EchoStar 2Q Net Up 33%; Some TiVo Claims Tossed
> 
> Aug 10, 2007 06:37:30 (ET)
> 
> EchoStar Communications Corp.'s (DISH) second-quarter net income rose 33% as the firm announced the federal patent office tossed some patent-related claims made by TiVo Inc. (TIVO).
> 
> The Englewood, Colo., satellite-television company posted net income of $224.2 million, or 50 cents a share, up from $168.8 million, or 38 cents a share, a year earlier.
> 
> Revenue climbed 12% to $2.76 billion.
> 
> The mean estimates of analysts polled by Thomson Financial were for earnings of 50 cents a share on revenue of $2.8 billion.
> 
> Dish Network added 170,000 net new subscribers in the second quarter, down from 195,000 a year earlier, ending the quarter with 13.6 million subscribers, up 9%. Average monthly revenue per subscriber increased 5% to $66.06 while the monthly churn, or cancellation, rate dipped to 1.68% from 1.7%.
> 
> EchoStar and its main competitor, DirecTV Group Inc. (DTV), are facing subscriber competition from telephone and cable companies offering "triple-play" bundles of discounted television, voice and high-speed internet services. The satellite firms can't offer bundles without joining up with partners.
> 
> In June, both companies struck a partnership with Clearwire Corp. (CLWR) to offer that company's high-speed wireless Internet service, giving the satellite operators another weapon in their battle against cable and telephone rivals.
> 
> _*Also weighing on EchoStar is the company's patent battle with TiVo. In October, a federal appeals court allowed EchoStar to continue to offer its digital-video recording service while the company appeals an April 2006 jury verdict that the firm infringed on a TiVo patent.
> 
> EchoStar said in its quarterly report, filed late Thursday with the Securities and Exchange Commission, that the Patent and Trademark Office on July 30 invalided all hardware claims made by TiVo at the trial against EchoStar and which the jury found EchoStar to have infringed. Two software claims weren't rejected. * _
> 
> Initially considered a market discriminator for satellite TV, DVRs could end up providing a significant boost for cable systems, a study recently found, particularly if DVRs are marketed in conjunction with burgeoning video-on-demand systems.
> 
> Shares of EchoStar closed Thursday at $38.30 and there was no premarket trading.
> 
> -Kevin Kingsbury and Andrew Edwards; Dow Jones Newswires; 201-938-5963
> 
> (END) Dow Jones Newswires
> 
> August 10, 2007 06:37 ET (10:37 GMT)


----------



## Johncv

Another news article seem to put another spin on things....

http://biz.yahoo.com/ap/070810/echostar_patent_disputes.html?.v=2&quicken=2


----------



## Johncv

Sound like to me the lawyers are having to much fun.......

http://ce.seekingalpha.com/article/43668


----------



## rbreding

I love the comment:



> "Based on our current analysis of the case, including the appellate record and other factors, we believe it is more likely than not that we will prevail on appeal," EchoStar said.


----------



## ZeoTiVo

rbreding said:


> EDIT: Looks like something of the sort was already discussed regarding the latest developments....I will leave this newswire post however...
> 
> Not sure why it hasn't been posted here yet....there was some news:


like was said below the spin is trying to ignore that key phrase - Two software claims weren't rejected.

Also they make no mention that it was appeable as well. Just spin for the SEC filing, there is some good news in it for EchoStar but it is not all wine and roses for them either.


----------



## shadowfax9x

Scuttlebutt news over at E* and the source is qualified...

"Charlie is running around like a mad dog on speed and is more abusive than usual" 

"He's (C.E.) on the verge of a massive heart attack or a complete nervous breakdown"

"Scores of employees are quitting everyday, including many key employees"

"Takeover talk abounds and everyone believes it is AT&T"

"TiVo is a little pimple on his ass and is seldom mentioned"

Note: I'm going for another Q&A session later this evening... I only wish that my source preferred bar whiskey instead of 18 year old scotch...


----------



## Johncv

shadowfax9x said:


> Scuttlebutt news over at E* and the source is qualified...
> 
> "Charlie is running around like a mad dog on speed and is more abusive than usual"
> 
> "He's (C.E.) on the verge of a massive heart attack or a complete nervous breakdown"
> 
> "Scores of employees are quitting everyday, including many key employees"
> 
> "Takeover talk abounds and everyone believes it is AT&T"
> 
> "TiVo is a little pimple on his ass and is seldom mentioned"
> 
> Note: I'm going for another Q&A session later this evening... I only wish that my source preferred bar whiskey instead of 18 year old scotch...


Seem to me that it would be unlikely (to me) that E* would be an attractive takeover target because of the legal mess (of it's making) that it's now in, even if the "other" company has "deep pockets". Just what would happen if the CEO of E* became "unable" to preform his "official duty " and how would this affect the legal case?


----------



## ZeoTiVo

Johncv said:


> Seem to me that it would be unlikely (to me) that E* would be an attractive takeover target because of the legal mess (of it's making) that it's now in, even if the "other" company has "deep pockets". Just what would happen if the CEO of E* became "unable" to preform his "official duty " and how would this affect the legal case?


actually a new owner would probably find a way to settle the legal issues pretty quickly that Charlie Ergen just refuses to do. They really are not big issues and I am sure TiVo would have preferred to not have such a long, public trial that had its own pitfalls and trraps for TiVo to avoid as well.


----------



## kmill14

Alright, I am new to this discussion, but have used and followed Tivo for a long time. To recap what was posted earlier, we have:

Claims:
1. A process for the simultaneous storage and play back of multimedia data....
31. A process for the simultaneous storage and play back of multimedia data....
32. An apparatus for the simultaneous storage and play back of multimedia data....
61. An apparatus for the simultaneous storage and play back of multimedia data

So are all these part of the same Time-Warping patent?

It seems that #1 and #31 are software claims related to the storage and play back of media, but they are *very different claims.* 
#1 seems pretty generic, in the sense that it describes taking a tv signal, converting it to mpeg, splitting audio and video, storing said audio and video, and being able to play it all back.
#31 is much more specific about *time-warping*, and to me, much more important for Tivo's survival. It describes the *ability to control the flow of streams of buffered video/audio data* stored on the device.
To me, this is Tivo's time-warping patent in a nutshell (or technical jargon for urination). Either way, I hope Tivo takes this approved claim and pisses all over Echostar with it.


----------



## kmill14

News just out that oral arguments are set for 10/4. Anyone with a legal background have an idea of how this could play out? How long it could last, etc?


----------



## shadowfax9x

**Panel J: Thursday, October 4, 2007, 10:00 A.M., Courtroom 201

2006-1574 TIVO V ECHOSTAR COMMUNICATIONS [argued]

A call to the court clerk informed me that the makeup of the three judge panel to hear oral arguments won't become public information until October 1st...

Both parties  to the appeal will be allowed 15 minutes to make their case...

"There is no set time limit on when the panel of judges will issue their decision. Normally, it takes a month or two, but there are no guarantees"..


----------



## BlackBetty

kmill14 said:


> News just out that oral arguments are set for 10/4. Anyone with a legal background have an idea of how this could play out? How long it could last, etc?


Could someone with legal background and has been following this case....can you sum up where this stands right now?

I know there are oral arguements scheduled for early October. Do both sides argue their points, and then it goes to the judges to decide? And if so, how long do the judges have to come back with a verdict?

Also what do you think TiVo's chances are of winning this appeal? Didn't Echostar recently have one of their earlier verdicts reversed? (meaning the appeals said they didn't infringe on that issue)? I keep hearing that TiVo will win if the court finds that Echostar infringed on even just one claim.


----------



## Curtis

BlackBetty said:


> Could someone with legal background and has been following this case....can you sum up where this stands right now?
> 
> I know there are oral arguements scheduled for early October. Do both sides argue their points, and then it goes to the judges to decide? And if so, how long do the judges have to come back with a verdict?
> 
> Also what do you think TiVo's chances are of winning this appeal? Didn't Echostar recently have one of their earlier verdicts reversed? (meaning the appeals said they didn't infringe on that issue)? I keep hearing that TiVo will win if the court finds that Echostar infringed on even just one claim.


I don't think the judges have a time limit.

As far as a reversal goes, IANAL but I'm pretty sure that during an appeal the facts of the case are not at issue. The jury determined infringement. The appellate judges just look at whether there was a procedural error during the trial. Worst case would be to send it back for a retrial.


----------



## ZeoTiVo

vkaramjem said:


> I thought it was only threads in the Happy Hour that had to be closed when they reach 1,000 posts. Last I checked there's no lock on the other thread. It would seem that we're on the verge of some kind of resolution or closure, why start another thread now?


the reason to start a new thread when you go over 1000 posts is that large threads bog the system down each time someone pulls it to read it since it requires a lot of database work to construct the thread for view in their browser.

of course you are just a stupid spammer trying to drive traffic to some "free stuff" website so I only posted that for anyone else's infromation.


----------



## mchips

ZeoTiVo said:


> of course you are just a stupid spammer trying to drive traffic to some "free stuff" website so I only posted that for anyone else's infromation.


It's odd that kmill14 and vkaramjem seem to be in the same threads, often saying the exact same thing, word for word...

Same individual(s)... are they getting ready to spam a scam?

Both are new accounts; I take it this is something they've/he's/it's done before?


----------



## kmill14

No! I don't know why this guy is or why he's copying my posts.


----------



## ZeoTiVo

mchips said:


> It's odd that kmill14 and vkaramjem seem to be in the same threads, often saying the exact same thing, word for word...
> 
> Same individual(s)... are they getting ready to spam a scam?
> 
> Both are new accounts; I take it this is something they've/he's/it's done before?


Yep. The posts at first do not look like the typical "get to five" but find more posts reveal vkaramjem dropped the spam link in a "Fun House" post. Even that post looked innocent enough at the surface. I used to report such ids but the enthusiastic moderators can deal with it themselves


----------



## mchips

kmill14 said:


> No! I don't know why this guy is or why he's copying my posts.


Hmm... maybe he's/it's just copying posts to appear like a legit user... I haven't looked closely enough at either of your accounts to see who's copying who, and if he's/it's copying others as well...

It's just something that immediately stands out as _very_ odd...

But if Zeo already noticed it spamming a link, definitely says a lot about him/it.


----------



## mchips

Okay, it also copied one of bidger's posts word for word in this same thread, so definitely a "stupid spammer."

:down:


----------



## atmuscarella

> Okay, it also copied one of bidger's posts word for word in this same thread, so definitely a "stupid spammer."


vkaramjem also copied one of my posts including my signature block, did not put it in quotes and did not make any comments about it. Seems kind of funny to me.

http://www.tivocommunity.com/tivo-vb/showthread.php?p=5470712#post5470712

Thanks,


----------



## btwyx

vkaramjem no longer existed. Looks like a spammer.


----------



## shadowfax9x

Curtis said:


> The jury determined infringement.


Predicting the outcome of this case is like trying to predict if the three judge panel on the Federal Circuit will have orange juice or grapefruit juice on the morning of October 4th... In the meantime, we're left with our posting meanderings...

Using NTP v. Research in Motion as a model on the way it currently stands supports the notion that TiVo holds a distinct advantage with their lower court decision...

In NTP v RIM, the Virginia District Court found that RIM infringed on 16 NTP patent claims...

RIM appealed to the Federal Circuit...

16 NTP patent claims were reexamined by the USPTO...

Eleven of those claims were upheld as valid and five were rejected...

NTP appealed the rejection of those five claims to the Board of Patent Appeals and Interferences...

In the meantime, the Federal Circuit process continued, heard the oral arguments, and later issued their decision supporting the lower courts ruling that RIM did indeed infringe on those 11 claims... The Federal Circuit removed their stay and sent the case back to the District Court to review the remaining five claims... (I think it is important to note that various federal government agencies submitted affidavits to the Federal Circuit stating that a complete shutdown of RIM's Blackberry would result in a detriment to national security)

After the decision by the Federal Circuit, RIM petitioned the Supreme Court to hear the case and the Supremes refused to get into the middle of it...

The case was sent back to the Virginia District Court... The judge ruled that those five claims that were rejected by the USPTO were still determined to be valid since the BPAI hadn't completed their review of those five claims appeal and he had a jury decision to support the original award...

Not only was the District Court judge ready to shut down Blackberry, he also threw out a prior settlement agreement between NTP and RIM and awarded NTP a grand total of $612 million... The appeal was a very expensive process for RIM as the original award was for $53 million...

I seem to recall that TiVo and Echostar may have also made some sort of settlement agreement after the original Texas case concluded as evidenced by that mysterious sealed document that sits in Judge Folsom's desk...

BTW, I predict that two of the judges on the panel will have OJ and the lone disenter will have grapefruit juice...


----------



## Curtis

shadowfax9x said:


> Not only was the District Court judge ready to shut down Blackberry, he also threw out a prior settlement agreement between NTP and RIM and awarded NTP a grand total of $612 million...


There was no such award. They settled out of court.


----------



## BlackBetty

shadowfax9x said:


> Predicting the outcome of this case is like trying to predict if the three judge panel on the Federal Circuit will have orange juice or grapefruit juice on the morning of October 4th... In the meantime, we're left with our posting meanderings...
> 
> Using NTP v. Research in Motion as a model on the way it currently stands supports the notion that TiVo holds a distinct advantage with their lower court decision...
> 
> In NTP v RIM, the Virginia District Court found that RIM infringed on 16 NTP patent claims...
> 
> RIM appealed to the Federal Circuit...
> 
> 16 NTP patent claims were reexamined by the USPTO...
> 
> Eleven of those claims were upheld as valid and five were rejected...
> 
> NTP appealed the rejection of those five claims to the Board of Patent Appeals and Interferences...
> 
> In the meantime, the Federal Circuit process continued, heard the oral arguments, and later issued their decision supporting the lower courts ruling that RIM did indeed infringe on those 11 claims... The Federal Circuit removed their stay and sent the case back to the District Court to review the remaining five claims... (I think it is important to note that various federal government agencies submitted affidavits to the Federal Circuit stating that a complete shutdown of RIM's Blackberry would result in a detriment to national security)
> 
> After the decision by the Federal Circuit, RIM petitioned the Supreme Court to hear the case and the Supremes refused to get into the middle of it...
> 
> The case was sent back to the Virginia District Court... The judge ruled that those five claims that were rejected by the USPTO were still determined to be valid since the BPAI hadn't completed their review of those five claims appeal and he had a jury decision to support the original award...
> 
> Not only was the District Court judge ready to shut down Blackberry, he also threw out a prior settlement agreement between NTP and RIM and awarded NTP a grand total of $612 million... The appeal was a very expensive process for RIM as the original award was for $53 million...
> 
> I seem to recall that TiVo and Echostar may have also made some sort of settlement agreement after the original Texas case concluded as evidenced by that mysterious sealed document that sits in Judge Folsom's desk...
> 
> BTW, I predict that two of the judges on the panel will have OJ and the lone disenter will have grapefruit juice...


and this has to do with TiVo's situation how?


----------



## shadowfax9x

Curtis said:


> There was no such award. They settled out of court.


Technically, you are correct... However RIM had a gun to their head and the previous agreement they had made with NTP was for $450 million & it was tossed out by District Judge Spencer... 
...

Is there any doubt in your mind that these lower court judges hold a big time grudge when their cases are appealed???


----------



## shadowfax9x

BlackBetty said:


> and this has to do with TiVo's situation how?


Maybe, very little... However, in the meantime, I believe those two TiVo rejected hardware claims currently have teeth until the Board of Patent Appeals and Interferences says otherwise...


----------



## Curtis

shadowfax9x said:


> Technically, you are correct...


As long as we are being technical, you made it sound like the USPTO rejection decision had an impact on the Blackberry case. Would you like to retract that or did I misinterpret?


----------



## shadowfax9x

Curtis said:


> As long as we are being technical, you made it sound like the USPTO rejection decision had an impact on the Blackberry case. Would you like to retract that or did I misinterpret?


I believe that Marbury v. Madison settled that issue long ago...


----------



## kmill14

So how does everyone interpret the meaning of claims #31 and 61 which were approved...one being software and one being hardware? I have my own thoughts, but I am not the king of technical jargon. And how does it relate to other DVRs in the marketplace that are NOT Tivo?


----------



## BlackBetty

if E* wins the appeal, will TiVo then have a chance to appeal the appeal? And if so, where does it end????


----------



## Curtis

shadowfax9x said:


> I believe that Marbury v. Madison settled that issue long ago...


You just said it. Marbury v. Madison happened years ago and did not mention you. The issue is what you said.


----------



## Curtis

kmill14 said:


> So how does everyone interpret the meaning of claims #31 and 61 which were approved...one being software and one being hardware? I have my own thoughts, but I am not the king of technical jargon. And how does it relate to other DVRs in the marketplace that are NOT Tivo?


Claims #61 and #31 were software claims according to the jury form.


----------



## shadowfax9x

BlackBetty said:


> if E* wins the appeal, will TiVo then have a chance to appeal the appeal? And if so, where does it end????


The end is near... Regardless of the Federal Circuit's decision, the loser will surely petition the Supreme Court to review the decision... If the Supreme Court elects to review the decision, then we're looking at another year or so before it ends... If the Supreme Court refuses to hear the case, it's history and the victor can drag his opponent around the arena behind his chariot... There is a third (very doubtful) scenario and that is if the Federal Circuit sends the case back to the District Court in Texas to retry the entire case...

It's hard to predict what the courts will do... If the Federal Circuit holds in favor of TiVo and lifts the stay on the injunction and allow Judge Folsom to force Echostar to disconnect their DVR's, I think there is a very strong possibility that the Supreme Court will step in to prevent that as they did in MercEchange v eBay...

Don't ever kid yourself that there isn't politics involved in high court decisions... I tend to believe that this Supreme Court didn't intercede on behalf of our northern neighbor in NTP v RIM ia primarily due to the global politics over in the middle east... Besides, it was also a home field call vs a foreign visitor... (I've got to log off as I think there is now a black helicopter flying over my house...)

Remember: Per Marbury v Madison, it is the judiciary that ultimately determines the application of the law and not any executive branch office like the USPTO or the Board of Patent Appeals and Interferences...


----------



## Curtis

shadowfax9x said:


> It's hard to predict what the courts will do... If the Federal Circuit holds in favor of TiVo and lifts the stay on the injunction and allow Judge Folsom to force Echostar to disconnect their DVR's, I think there is a very strong possibility that the Supreme Court will step in to prevent that as they did in MercEchange v eBay...


MercExchange v. eBay is a very different case. TiVo actually has a product.

In denying an injunction Judge Friedman wrote:

""MercExchange's modus operandi appears to be to seek out companies that are already market participants that are infringing, or potentially infringing, on MercExchange's patents and negotiate to maximize the value of a license, entered into as a settlement to, or avoidance of, litigation," Friedman wrote.

He also added that the firm "has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market-share, reputation, goodwill, or name recognition, as MercExchange appears to possess none of these." "


----------



## shadowfax9x

Curtis said:


> MercExchange v. eBay is a very different case. TiVo actually has a product.


The Supreme Court specifically dismissed District Judge Freidman's "product" reasoning when they overturned the Federal Circuit ruling to grant MercExchange injunctive relief... In the 5-0 opinion, Justice Kennedy wrote the court's opinion "legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest." and Justice Thomas added "Some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves and they should be given equal opportunity to obtain injunctions."

Comment: The courts have always relied on the age old four factor test in determining these cases and the recent bi-polar rulings from the Supreme Court has muddied the water to the point of insanity... I suppose it will remain that way until our Congressional lawmakers get off their collective butts and enter the 21st century, but I'm sure the ABA is loving the status quo... I recall the old tale about a young lawyer that moved to a small town and had to moon light as a night watchman to support himself. After a second lawyer moved into town, it wasn't that long until they both became the two wealthiest people in town...


----------



## Curtis

shadowfax9x said:


> The Supreme Court specifically dismissed District Judge Freidman's "product" reasoning when they overturned the Federal Circuit ruling to grant MercExchange injunctive relief..


You are behind the times. The Supreme Court sent it back to Judge Freidman. I quoted his ruling from July 2007.


----------



## shadowfax9x

Curtis said:


> You are behind the times. The Supreme Court sent it back to Judge Freidman. I quoted his ruling from July 2007.


After the appeal process is exhausted, all civil cases are sent back to the original District Court... While MercExchange never got their injunction, they still won their willful infringement case against eBay and are due the damages awarded to them by the Virginia jury and affirmed by the Federal Circuit...

From the VA court case history file: Judge Freidman concluded "accordingly, the court considers the type of patent involved, the impact on the market, the impact of the patent system, and any other factors that may impact the public at large and concludes that, on the facts, the public interests weighs against the entry of an injunction."

It will be interesting to see if the higher courts uphold Judge Folsom's injunction order in TiVo or will they deem that Echostar's DVR's are also in the "public interests?"


----------



## Curtis

shadowfax9x said:


> After the appeal process is exhausted, all civil cases are sent back to the original District Court... While MercExchange never got their injunction, they still won their willful infringement case against eBay and are due the damages awarded to them by the Virginia jury and affirmed by the Federal Circuit...


As I said, none of the reasons MercExchange didn't get an injunction apply to TiVo. I don't know why you even brought up the case.


----------



## BlackBetty

interesting pissing contest


----------



## Curtis

BlackBetty said:


> interesting pissing contest


I expect him to bring up the Dred Scott decision next.


----------



## shadowfax9x

Curtis said:


> As I said, none of the reasons MercExchange didn't get an injunction apply to TiVo. I don't know why you even brought up the case.


In an effort to maintain the civil decorum on this excellent thread and waiting to see if some of the more prolific posters should decide to weigh in, I'll offer you this: I guarantee you that the Supreme Court's decision set in MercExchange v eBay will be one of the prior case precedents argued on October 4th and cited again in the Federal Circuit's final opinion in the determination of TiVo v Echostar... 

The more I study this case, the more impressed I become with the genius of Morgan Chu... His "bird in hand" reasoning to drop the cross appeal greatly reduces Echostar's ability to shoot holes in the original district court decision...


----------



## jfh3

shadowfax9x said:


> The more I study this case, the more impressed I become with the genius of Morgan Chu... His "bird in hand" reasoning to drop the cross appeal greatly reduces Echostar's ability to shoot holes in the original district court decision...


OK, I'll presume this bodes well for Tivo, but can you expand on how dropping the cross appeal limits Echostar?


----------



## ZeoTiVo

jfh3 said:


> OK, I'll presume this bodes well for Tivo, but can you expand on how dropping the cross appeal limits Echostar?


well I am not a lawyer so will give the simple answer of it focuses all the appeal judgement back on the original facts of the case. Things like wanting the treble damages for willful infringement just allowed wiggle room because then the patent office decisions could be hauled up, etc..

Streamlining the case is how I see it.


----------



## shadowfax9x

jfh3 said:


> OK, I'll presume this bodes well for Tivo, but can you expand on how dropping the cross appeal limits Echostar?


Because the Federal Circuit has been under the gun to get a handle on damages awarded in infringement cases and they are sick and tired of having their decisions being trumped by the Supreme Court...

On August 20, 2007, the Federal Circuit issued a Writ of Mandamus (petitioned by Seagate) and overturned an important precedent set in the Underwater Devices v. Morrison-Knudsen infringement case decided in 1983... In it, the Federal Circuit raised the bar in patent lawsuits by concluding that proof of willful infringement must now require a showing of "objective recklessness" on the part of the infringer before the courts should consider enhanced damages or any injunctive relief... 

The writ also addressed the issue of attorney/client privilege as it applies to legal opinions offered on patents... Echostar's legal counsel submitted an amicus curiae brief supporting Seagate's petition for this writ...

http://www.fedcir.gov/opinions/M830.pdf


----------



## Rebate_King

how soon can we expect a deffinitive answer on this appeal? TiVo gets to argue their case early next month. Whats the next step after that?


----------



## BlackBetty

ZeoTiVo said:


> I ma still pulling for treble damages just because Ergin(oops) is such an ahole business man


Is treble damages even a possibility at this point? Wasn't that shot down in round 1?


----------



## ZeoTiVo

BlackBetty said:


> Is treble damages even a possibility at this point? Wasn't that shot down in round 1?


not shot down. see the Posts just before this. it is off the table though


----------



## Curtis

shadowfax9x said:


> On August 20, 2007, the Federal Circuit issued a Writ of Mandamus (petitioned by Seagate) and overturned an important precedent set in the Underwater Devices v. Morrison-Knudsen infringement case decided in 1983... In it, the Federal Circuit raised the bar in patent lawsuits by concluding that proof of willful infringement must now require a showing of "objective recklessness" on the part of the infringer before the courts should consider enhanced damages or any injunctive relief...


Only preliminary injunctive relief was addressed by the ruling, not permanent injunctions.


----------



## shadowfax9x

Curtis said:


> Only preliminary injunctive relief was addressed by the ruling, not permanent injunctions.


Yes, it does, but that's not the point... I get the impression that the higher courts are making a concerted effort to muddy up the established tests for willful infringement with this new "objective recklessness" business since the decision was handed down in TiVo v. Echostar... As Echostar's law firm submitted an amicus brief supporting Seagate's petition, are they planning to try an end run play and argue it as it may apply to the stayed permanent injunction??? (The CAFC already settled the attorney/client priviledge issue in this case)

... or will Echostar simply try to convince the Federal Circuit to toss out the lower court decision because their DVR doesn't use or even need TiVo's technology???

Other than entertain the Federal Ciircuit with some card tricks during their 15 minutes on Oct. 4th, it's a given that Echostar is coming with something to sway the court because the final gun is about to sound...

What's your take???


----------



## Curtis

shadowfax9x said:


> Yes, it does, but that's not the point... I get the impression that the higher courts are making a concerted effort to muddy up the established tests for willful infringement with this new "objective recklessness" business since the decision was handed down in TiVo v. Echostar... As Echostar's law firm submitted an amicus brief supporting Seagate's petition, are they planning to try an end run play and argue it as it may apply to the stayed permanent injunction??? (The CAFC already settled the attorney/client priviledge issue in this case)
> 
> ... or will Echostar simply try to convince the Federal Circuit to toss out the lower court decision because their DVR doesn't use or even need TiVo's technology???
> 
> Other than entertain the Federal Ciircuit with some card tricks during their 15 minutes on Oct. 4th, it's a given that Echostar is coming with something to sway the court because the final gun is about to sound...
> 
> What's your take???


Whether there was willful infringement or not has no impact on whether there should be a permanent injunction.

As to whether the Dish DVR infringes, the jury already settled that. The facts of the case won't be rehashed during the appeal. The issue is whether there were procedural errors during the trial.


----------



## kmill14

I'm confused. Was the judgement for Tivo only that Echostar infringed (not willfully, but just infringed *period*)???

What is the likelihood that there was some "error" in the original proceedings that would cause the Appeals court to overrule? Or would they just ask for a re-trial or something along those lines?


----------



## Curtis

kmill14 said:


> I'm confused. Was the judgement for Tivo only that Echostar infringed (not willfully, but just infringed *period*)???
> 
> What is the likelihood that there was some "error" in the original proceedings that would cause the Appeals court to overrule? Or would they just ask for a re-trial or something along those lines?


You can view the actual form the jury signed here.

The judge decided against enhanced damages even though the jury found that the infringement was willful. TiVo dropped their appeal asking for enhanced damages.

The vast majority of patent appeals don't succeed. If Dish wins their appeal, the case will be sent back to the original judge possibly for retrial.


----------



## kmill14

So could Echostar's argument still be that they did NOT in fact willfully infringe? Even though the judge did not award treble damages, the actual verdict still states willful infringement. Of course it is only part of a more-encompassing verdict. So it the willful part a mute point at this juncture?


----------



## timckelley

I think it would be pretty unfair if the willful infringement were revoked. That's what the jury said, and it was bad enough for the judge to ignore it in the damage phase. Vacating the verdict would add insult to injury.


----------



## ZeoTiVo

kmill14 said:


> So could Echostar's argument still be that they did NOT in fact willfully infringe? Even though the judge did not award treble damages, the actual verdict still states willful infringement. Of course it is only part of a more-encompassing verdict. So it the willful part a mute point at this juncture?


the appeals court can not re-rule on the facts of the case - it is not a do over or something like that.

over time I have lost track of exactly what Echostar appealled  can someone fill in that piece of info?


----------



## Curtis

kmill14 said:


> So could Echostar's argument still be that they did NOT in fact willfully infringe? Even though the judge did not award treble damages, the actual verdict still states willful infringement. Of course it is only part of a more-encompassing verdict. So it the willful part a mute point at this juncture?


If a jury finds that infringement is willful a judge might decide to award enhanced damages. This judge decided not to. TiVo decided not to pursue it. Willfulness is not an issue in the appeal. It just doesn't matter.

Be sure to read this.


----------



## shadowfax9x

*This was the Federal Circuit's reasoning when they granted Echostar's motion to stay the injunction...*

_Because EchoStars DVR was found to infringe both the hardware and software claims, to obtain a stay of the injunction, EchoStar must show that it is likely to prevail on its arguments concerning both sets of claims. Based upon our review of the motions papers, and without prejudicing the ultimate determination of this case by the merits panel, EchoStar has met its burden of showing that there is a substantial case on the merits and that the harm factors militate in its favor.  Thus, the motion for a stay is granted._

*Here are a series of possible arguements that may be employed by Echostar to shoot down the District Court's decision in TiVo v. Echostar...*

*MercExchange v. eBay: the Supreme Court overruled the Federal Circuit's decision by employing the Four Factor Test to determine the award of injunctive relief: There is little doubt that Echostar would suffer major harm if they are forced to disable nearly four million DVR's???*
(_1) that it has suffered an irreparable injury; 
(2) that remedies available at law are inadequate to compensate for that injury;
(3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; 
(4) that the public interest would not be disserved by a permanent injunction. _

*Will Echostar argue that the District Court didn't heed the Graham "obviousness" test as determined by the Supreme Court in KSR v. Teleflex??? I suppose Echostar could argue that TiVo's DVR is so obvious that many DVR manufacturers have employed the same pause and replay technology as TiVo for years.... *

Graham Factors:

_(1) the scope and content of the prior art; 
(2) the level of ordinary skill in the prior art; 
(3( the differences between the claimed invention and the prior art; 
(4)objective evidence of nonobviousness. _

and for good measure, the Supreme Court outlined examples of factors that show "objective evidence of nonobviousness". They are:

(1) commercial success; 
(2) long-felt but unsolved needs; 
(3) failure of others.

*or will Echostar simply argue that they didn't know that their DVR infringed on TiVo's technology based on the opinion they received from their attorneys??? *

Then it will be up to the Federal Circuit to muse if the District Court employed the new "Objective Recklessness" standard as established in Seagate...

*Absent the hype coming from both parties, will the Federal Circuit even consider that seven of the nine patent claims in question were rejected by the USPTO??? *

*And what about Judge Folsom's instruction to the jury when he told them that they could find for infringement even if Echostar didn't copy TiVo's technology as reported in the Marshall Messenger???* I still haven't figured that one out...

Comment: I believe the original award will remain intact, but I'm not too sure if the injunction imposed by Judge Folsom will survive... If it should, then Echostar will be on the hot seat to settle for a whole lot more than the original award as we saw in NTP v. RIM....

Is this case fun to follow??? You betcha....


----------



## kmill14

So can the Appeals court determine their own damages if they agree with infringement? Suppose the don't uphold the need for an injunction, but instead force Echostar to pay on-going royalties? Can they do that? 

Couple other thoughts...

I was under the impression Judge Folstom did use the Four Factor Test, in determining the Injunction. 

The USPTO decision is appealable by Tivo, so wouldn't the Appeals judges stay away from that process all together? Besides , they at the very least infringed on two software claims, which could still negate Echostar's ability to use any box with that software, or pay royalties in order to do so.


----------



## shadowfax9x

kmill14 said:


> So can the Appeals court determine their own damages if they agree with infringement? Suppose the don't uphold the need for an injunction, but instead force Echostar to pay on-going royalties? Can they do that?
> 
> Couple other thoughts...
> 
> I was under the impression Judge Folstom did use the Four Factor Test, in determining the Injunction.
> 
> The USPTO decision is appealable by Tivo, so wouldn't the Appeals judges stay away from that process all together? Besides , they at the very least infringed on two software claims, which could still negate Echostar's ability to use any box with that software, or pay royalties in order to do so.


The Federal Circuit only reviews the merits of the appeal... If they should find any decisive fault in the original decision, they send it back to the District Court to tidy up...

Absent a permanent injunction, can the CAFC force Echostar to pay royalties? No, but I believe they can send it back to Judge Folsom and have a jury determine future royalties (compulsory licensing)... Much to the chagrin of curtis, I'm going to cite another patent infringement case that was decided by Judge Folsom the day before the TiVo decision... In Paice v. Toyota, the jury found that Toyota infringed on a Paice patent used on hybrid automobiles... The Four Factor Test was applied and the judge decided that a permanent injunction wasn't an equitable solution because Paice wasn't actively engaged in selling a product... Instead, he left it up to the jury to determine a monetary amount that Toyota should pay Paice... (I believe the jury determined that $25 per hybrid automobile sold in the US made for equitable relief)

Was the determination of the Four Factor Test fair in this instance??? Paice didn't think so and they argued that hybrid auto technology is in the embryonic stage and this ruling destroys any chance it has to actively sell its product in an open market...

I think it is reasonable to assume that if TiVo v. Echostar was completely decided a year earlier, we wouldn't be having this discussion today... Since MercExchange v. eBay, there is no longer any black and white and we are now left with a hazy dull gray...


----------



## Curtis

shadowfax9x said:


> *or will Echostar simply argue that they didn't know that their DVR infringed on TiVo's technology based on the opinion they received from their attorneys???
> 
> Then it will be up to the Federal Circuit to muse if the District Court employed the new "Objective Recklessness" standard as established in Seagate...
> *


*
Once again, willful infringement isn't the issue. Sheesh.*


----------



## Curtis

kmill14 said:


> So can the Appeals court determine their own damages if they agree with infringement? Suppose the don't uphold the need for an injunction, but instead force Echostar to pay on-going royalties? Can they do that?
> 
> Couple other thoughts...
> 
> I was under the impression Judge Folstom did use the Four Factor Test, in determining the Injunction.
> 
> The USPTO decision is appealable by Tivo, so wouldn't the Appeals judges stay away from that process all together? Besides , they at the very least infringed on two software claims, which could still negate Echostar's ability to use any box with that software, or pay royalties in order to do so.


Judge Folsom did use the Four Factor Test. He went into detail as to each test.

The appeals court will disregard the in-work USPTO process. It has a long way to go.


----------



## Curtis

shadowfax9x said:


> Much to the chagrin of curtis, I'm going to cite another patent infringement case that was decided by Judge Folsom the day before the TiVo decision... In Paice v. Toyota, the jury found that Toyota infringed on a Paice patent used on hybrid automobiles... The Four Factor Test was applied and the judge decided that a permanent injunction wasn't an equitable solution because Paice wasn't actively engaged in selling a product... Instead, he left it up to the jury to determine a monetary amount that Toyota should pay Paice... (I believe the jury determined that $25 per hybrid automobile sold in the US made for equitable relief)


You are confusing two separate things.

1. The decision as to whether there should be an injunction. Paice didn't have a product on the market. They weren't being hurt daily by loss of their place in the market, name recognition etc.: They failed the 4 factor test. With TiVo, a lost customer means a lost customer for many years, possibly forever. An injunction is needed to prevent that. Judge Folsom explained that in his rationale for an injunction. You ought to read his decision.

2. Amount of the award: the jury determined damages in the TiVo case as best they could. Future damages are incalculable due to the nature of the product. Thus the need for an injunction.


----------



## shadowfax9x

Curtis said:


> Once again, willful infringement isn't the issue. Sheesh.


It's not??? LOL


----------



## Curtis

shadowfax9x said:


> It's not??? LOL


This has been explained to you several times. Willfulness only comes into play with regard to whether enhanced damages should be assessed. The judge decided that enhanced damages weren't warranted and TiVo decided not to pursue it further.


----------



## shadowfax9x

Curtis said:


> You are confusing two separate things.
> 
> 1. The decision as to whether there should be an injunction. Paice didn't have a product on the market. They weren't being hurt daily by loss of their place in the market, name recognition etc.: They failed the 4 factor test. With TiVo, a lost customer means a lost customer for many years, possibly forever. An injunction is needed to prevent that. Judge Folsom explained that in his rationale for an injunction. You ought to read his decision.
> 
> 2. Amount of the award: the jury determined damages in the TiVo case as best they could. Future damages are incalculable due to the nature of the product. Thus the need for an injunction.


In eBay, the Supreme Court cited the need for a strong patent system,,, They also intimated that the courts cannot deny a patentee any injunctive relief if they should elect to only license their technology versus bringing a product to the open market... (This ambiguous verbiage didn't work for MercExchange, but it certainly worked for Mr. Campana when NTP walked away with $612,000,000 in the RIM case... A pity that he died before he got his loot)

At best, the interpretation of the Four Factor Test is subjective in nature... Granted, Judge Folsom is a very able judge and he cited some very valid reasons to grant the permanent injunction in TiVo... For argument sake, he could have applied the same Four Factor Test and come up with a completely different ruling:

Does Echostar's infringement totally inhibit TiVo's ability to market, sell, or license its technology???

Judge Folsom could have ruled that TiVo's business failures aren't entirely due to Echostar's infringement...

Does Echostar's infringement damage TiVo's brand name recognition???

Good grief!!! "tivo" is commonly recognized as a verb in the DVR world...

Is Echostar in direct competition with TiVo???

Judge Folsom ruled in Paice that they were not in direct competition with Toyota because they don't manufacture automobiles... The same Four Factor logic could apply to Echostar as they are primarily in the satellite television business and not in the DVR business... Besides, it could be said that their DVR's are solely intended for their DISH subscribers and not marketed to the general public... 

Regarding the harm factor, is the issue of a permanent injunction really warranted in this case???

The judge could have applied the same equitable solution that he did in Paice and absent the need for a permanent injunction, he could have ordered Echostar to pay TiVo future royalties for as long as they continue to infringe... Remember, TiVo was decided in the District Court prior to the Supreme Court's intervention in eBay... Now, permanent injunctions are no longer a slam dunk cinch in patent cases and may pose the biggest threat to TiVo's case... Also, it is highly doubtful the Supreme Court is going to allow for another fiasco as they did by refusing to intervene in NTP v. RIM and they certainly don't want to face the public's scrutiny by allowing the district court to disable over three million DVR's...


----------



## Curtis

shadowfax9x said:


> Also, it is highly doubtful the Supreme Court is going to allow for another fiasco as they did by refusing to intervene in NTP v. RIM and they certainly don't want to face the public's scrutiny by allowing the district court to disable over three million DVR's...[/COLOR]


There was no fiasco. There was a settlement. DVRs are a luxury. No one is going to starve or be without shelter because they don't hava an infringing DVR to watch.


----------



## shadowfax9x

Curtis said:


> This has been explained to you several times. Willfulness only comes into play with regard to whether enhanced damages should be assessed. The judge decided that enhanced damages weren't warranted and TiVo decided not to pursue it further.


The appeal phase is not going to be a walk in the park for TiVo because the ground rules for infringement and willful infringement have changed since the original decision was rendered in Texas... To think otherwise, is naive...

At the District Court level, Echostar met its burden of "duty of due care" by introducing testimony from an outside legal expert that they were not infringing on any of TiVo's patents... Judge Folsom instructed the jury to disregard the entire testimony from this witness after TiVo demaned discovery and Echostar refused citing attorney/client privledge... Without this testimony in the record, the jury had little problem in making a decision in Tivo's favor...

Echostar is bringing some big legal guns to the oral arguement phase in the appeal... I get the distinct impression that Echostar's legal counsel is gambling on having the entire case overturned as evidenced by their amicus brief in the Seagate matter... The resulting Writ of Mandamus issued by the Federal Circuit supported the Supreme Court's previous precedent establishing reprehensibility, not willfullness, as the threshold for enhanced damages...

I also believe that Echostar will try to demonstrate to the Federal Circuit that Judge Folsom overreached by issuing the permanent injunction in his application of the Four Factor Test*...

* in eBay, Justices Kennedy, Stevens, Souter and Breyer cited a new fifth factor test: "the potential vaguenss and suspect validity of the patent at issue"....


----------



## Curtis

shadowfax9x said:


> The appeal phase is not going to be a walk in the park for TiVo because the ground rules for infringement and willful infringement have changed since the original decision was rendered in Texas... To think otherwise, is naive...


Willful infringemernt again...

I won't respond further. You seem to have an agenda.


----------



## jmoak

Here's a good guide to help folks wade through all this expert speculation:


----------



## kmill14

So, lets say Echostar WAS told by the attorneys they hired that they were not infringing. Doesn't that only go towards the question of willful infringement? 

They can still be found guilty of infringement (which they were) regardless of what their own attorneys told them.

Also, the entire argument was thrown out because E* waived their right to Attorney/Client priv once they started this argument. 

"My attorneys told me ......., so I am clear of willful infringement, but I won't share with you all the documents that pertain to this"


----------



## shadowfax9x

Curtis said:


> Willful infringemernt again...
> 
> I won't respond further. You seem to have an agenda.


I do have an "agenda"... I'm trying to weigh it all in my head and anticipate the potential downside as I know the upside will always take care of itself... The last thing I want to see is this case being sent back to Texas to be completely retried and I certainly don't want the SCOTUS to get into the middle of it... We can only hope that Charlie Ergen blinks first and decides to settle with Tom Rogers over a pitcher of beer...


----------



## HDTiVo

shadowfax9x said:


> I do have an "agenda"... I'm trying to weigh it all in my head and anticipate the potential downside as I know the upside will always take care


It looks to me like you are covering the territory very well.


----------



## yunlin12

Echo just bought Sling.

http://biz.yahoo.com/bw/070924/20070924006504.html?.v=1

It seems that both Echo and Liberty media are investors in Sling. And Sling uses Tivo in their website, http://us.slingmedia.com/page/background.html and http://us.slingmedia.com/page/slingboxav.html

What a tangled web this is!


----------



## samo

Perhaps Charlie wants to buy Krikorian's patents before they get too expensive?
Maybe even use them in a pending lawsuit against TiVo?


----------



## stevel

In related news, EchoStar is discussing splitting off its division that produces equipment such as DVRs. I wonder if this is an attempt to insulate liability from the TiVo lawsuit.


----------



## Curtis

stevel said:


> In related news, EchoStar is discussing splitting off its division that produces equipment such as DVRs. I wonder if this is an attempt to insulate liability from the TiVo lawsuit.


The award money is in an escrow account.


----------



## timckelley

Must be a huge escrow.


----------



## kmill14

Curtis said:


> The award money is in an escrow account.


Curtis, I brought this up on a different board....but I would be curious to get other opinions.

I believe the money E* has in escrow is the amount of the original verdict, plus interest. The amount was determined from the starting date of Jan. 1 2002 (I believe) up to the time of the verdict. While interest was accrued on that original amount, it has been over a year since the verdict and award was rendered.

Should we not assume that this award would also now need to include any additional boxes given to customers that have been deemed to infringe, plus another year+ of 4 million+ worth of infringing boxes * the fee per box.

What was the fee accessed to Tivo per infringing box?

Could Tivo go after newer boxes as well?


----------



## kmill14

Shadowfax, this article seems to address a lot of your concerns regarding recent patent cases. The main theme though that it addresses is specifically "non-practicing patent holders". Tivo obviously does not fall in that catagory, and should not be held in anywhere near the same group as them.

http://www.mondaq.com/article.asp?articleid=52066


----------



## Curtis

TiVo Inc. v. EchoStar Communications Corp., 446 F.Supp.2d 664 (E.D.Tex. 2006).
Judge: David Folsom
Division: Marshall
Holding: Plaintiff's Motion for Injunction GRANTED; Defendants' Motion to Stay Any Injunction Pending Appeal should be DENIED.

As noted last week, one day after denying the request for an injunction in the Paice v. Toyota case, Judge Folsom granted the request for injunction in the TiVo v. Echostar case and denied the motion to stay the injunction pending appeal. Why the difference? Judge Folsom explains in the introduction to Section IV of his opinion:

Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff  Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiffs DVRs. The availability of the infringing products leads to loss of market share for Plaintiffs products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm  Plaintiff is losing market share at a critical time in the markets development, market share that it will not have the same opportunity to capture once the market matures.

As also noted last week, the Federal Circuit issued a temporary stay of the injunction.

http://mcsmith.blogs.com/eastern_district_of_texas/2006/08/injunction_gran.html


----------



## shadowfax9x

kmill14 said:


> Shadowfax, this article seems to address a lot of your concerns regarding recent patent cases. The main theme though that it addresses is specifically "non-practicing patent holders". Tivo obviously does not fall in that catagory, and should not be held in anywhere near the same group as them.
> 
> http://www.mondaq.com/article.asp?articleid=52066


Unfortunately, talk is cheap and the court needs to provide us with mug shots identifying the patent trolls... This vague language coming from the courts tosses all of the dedicated inventors and universities into the same pot with the trolls... These same inventors and universities have provided tens of thousands of innovative patents that help make the world a better place to live..

Many have argued that the American Father of Invention was also a patent troll along with being labeled as a sly opportunist and a notorious infringer... It certainly gained him acclaim and he has a whole lot of schools bearing his name.. 
---------------------------------------------------
Want to read something amusing??? Check out Judge Gajarsa's remarks in the Seagate mandamus regarding the word "willfulness"... That word does appear in the Copyright Act, but isn't written into the Patent Act... Yet it has been applied hundreds of times in patent case law to describe the degree of culpability...


----------



## kmill14

You hardly addressed my point. The cases you have brought up over and over again in your argument about how Tivo could lose this appeal all have to deal with companies that don't actually produce/sell anything related to the patents they are defending. Hence the "non-practicing" phrase. But Tivo of course has been trying to sell its patent-laden products for years, and the E*'s of the world have repeatedly ignored those patents.


----------



## shadowfax9x

kmill14 said:


> You hardly addressed my point. The cases you have brought up over and over again in your argument about how Tivo could lose this appeal all have to deal with companies that don't actually produce/sell anything related to the patents they are defending. Hence the "non-practicing" phrase. But Tivo of course has been trying to sell its patent-laden products for years, and the E*'s of the world have repeatedly ignored those patents.


Maybe, it's a regional language barrier thing... I believe that I've cited about four different cases to make certain points in TiVo v. E* for general discussion... Who knows, I may have hit upon a thing or two that Echostar may argue on Oct. 4th??? In these four cases:

NTP had a patent but didn't have a product... They won at both the district and at the appeal level...

MercExchange had a patent, but didn't have a product... They won their case at the district level - minus the injunction... They won the injunction back at the appeal level, but lost it again at the SCOTUS level...

Teleflex had both a patent and a product... They lost at the district level, won it at the appeal level, and they too lost it back at the SCOTUS level...

Paice had a patent, but no product... They lost at the district level and the case is pending appeal...

Look, TiVo has a favorable decision from the district court that is worth its weight in gold, but the higher courts are unpredictable and parts of this case can still go either way... (not to mention the political/business pressure that they are constantly under) To close your mind to that little fact could result in some disappointing consequences... The Federal Circuit is a completely different venue than the folksy court in Texas, has different ground rules, and Echostar is bringling their A-team with them... It should be quite a show and I've thought about making the trip, but someone who lives in D.C. promised me they would try to attend and provide me with a timely report...


----------



## acvthree

>>>folksy court in Texas,

Was that intended to be insulting?


----------



## shadowfax9x

acvthree said:


> >>>folksy court in Texas,
> 
> Was that intended to be insulting?


Well everyone was pretty darn folksy the last time I visited Marshall and ditto that for Carrollton... Head on down I-45 and say "Hey"... LOL


----------



## shadowfax9x

It always made perfect sense....

EchoStar rises on report of AT&T takeover offer
By Andy Vuong 
Denver Post Staff Writer
Article Last Updated: 09/27/2007 04:20:24 PM MDT

http://www.denverpost.com/business/ci_7016365


----------



## kmill14

I don't understand AT&T's strategy with regards to providing TV service....


Regardless, its a good idea for Dish to sell out now before a majority of their DVR boxes get shut off and their stock price drops like a rock.


----------



## petew

kmill14 said:


> I don't understand AT&T's strategy with regards to providing TV service....


I don't think ATT do either! They know they need to have a TV offering to compete with the cable Co's since the cable co's are now offering fixed line phone service and Triple Play discount packages. But parts of ATT have been trying for over ten years to build a competetive alternative to the incumbent cable co's. I was almost a customer of Pacbell Video Services back in '97 when they build out a cable system, ran it for a few months and then shut it down.


----------



## Curtis

Thread drift.


----------



## BlackBetty

If AT&T buys out E*, what do you think it means for TiVo? Think AT&T would look to end this sillyness and make a deal with TiVo asap?


----------



## timckelley

If AT&T intended to settle with TiVo ASAP, then I bet they'd factor that settlement into the price they pay the owners of E* when they buy them out. So effective, E* would be paying the price of the settlement, which is as it should be.


----------



## kmill14

Drop in the bucket, and I doubt any selling of Echostar assets to AT&T or DTV or whoever would happen before this case gets completed.


----------



## BlackBetty

What can we expect to hear on Oct 4th if anything? Will we be able to attain a transcript of the arguements? 

Also how long can the judges take to render a verdict? Are we talking days, weeks, months, etc?


----------



## shadowfax9x

The Federal Circuit judges are certainly going to earn their paychecks this week...

70 cases to be heard and 36 of them will be heard in New York City...

_Announcements

Suspended Availability of Print Copies of Final Opinions and Tapes of Oral Arguments: The United States Court of Appeals for the Federal Circuit will temporarily suspend the availability of oral argument tapes and copies of final opinions beginning October 1, 2007 because of office renovations that will require extensive but temporary personnel moves. The resulting disruption will make it impossible to make and distribute copies of final opinions and tapes of oral arguments as routine business. The suspension is expected to lift on or about October 22; the actual date will be announced on this website. As a reminder, final opinions and audio recordings of oral arguments are available for free on the court's website. Opinions are available the day that they are released. Oral arguments are available within 24 hours of the day that the argument is heard. Any questions may be referred to Mr. Ronald McGruder at 202-312-3467.

Federal Circuit Will Change Its Web Page Address and Domain Name Effective October 1, 2007: The United States Court of Appeals for the Federal Circuit is relocating its Internet Web page to its own in-house servers. As part of this process, the court's Web page address and domain name will be changed to www.cafc.uscourts.gov on October 1, 2007. The former Web page address and domain name, www.fedcir.gov, will continue to be kept active through December 31, 2007, in order to redirect users to the new address. The new domain name brings the Federal Circuit into conformance with the Web site naming convention used by the other United States Courts of Appeals. Web site authors and others who have created links to pages inside the www.fedcir.gov Web page should change the URL of those links to the new URL on October 1, 2007. Please direct any questions to the CAFC Webmaster at [email protected]. We apologize for any inconvenience you may experience during this transition.

Federal Circuit to Sit in New York City in October 2007: The United States Court of Appeals for the Federal Circuit will sit in New York City during the first week of October, 2007. Court sessions will be held at the United States District Court, the United States Court of International Trade, Columbia University School of Law, Fordham University School of Law, and New York University School of Law. _

http://www.cafc.uscourts.gov/calendar.html


----------



## dswallow

> **Panel J: Thursday, October 4, 2007, 10:00 A.M., Courtroom 201
> 
> 2006-1574 DCT TIVO V ECHOSTAR COMMUNICATIONS [argued]


So is anything actually going on in the courtroom that might be interesting to watch in person?


----------



## kmill14

Thanks shadowfax. I don't know about anyone else, but I'm excited...and nervous. And excited. Tivo needs a big win here.....


----------



## shadowfax9x

dswallow said:


> So is anything actually going on in the courtroom that might be interesting to watch in person?


I would like to know about the visual body language exhibited by the judges during oral arguments... Smiles and scowls may provide a clue on how they are leaning... Hopefully, Brother Dave will fill us in...

... and I wonder about the panel's attention span with this extra heavy docket...


----------



## BlackBetty

shadowfax9x said:


> I would like to know about the visual body language exhibited by the judges during oral arguments... Smiles and scowls may provide a clue on how they are leaning... Hopefully, Brother Dave will fill us in...
> 
> ... and I wonder about the panel's attention span with this extra heavy docket...


Could the heavy docket cause a delay in getting a decision?

Any idea of how long before we hear something?


----------



## BlackBetty

Does E* have another DVR (maybe in the works since the original verdict was annouced) that doesn't infringe on TiVo patents?

I am just wondering what will happen if the appeal is upheld and E* is forced into an injunction on their DVR's. 

I can't imaging E* turning off those DVR's, so I see really just 2 outcomes.

1) Pay TiVo royalties to contine to use those DVR's, maybe even put TiVo software on them.

2) Swap out those boxes with a non patent fringing box.


----------



## davecramer74

> I am just wondering what will happen if the appeal is upheld and E* is forced into an injunction on their DVR's.


theyll have to pay them money. They juts had a brand new hd dvr come out, id assume that either it doesnt break the patents or echostar isnt too concerned about the outcome of this case. Either way, if tivo wins, it would be a royalty thing. See vonage...which they got nailed for millions but changed their technology.


----------



## BlackBetty

davecramer74 said:


> theyll have to pay them money. They juts had a brand new hd dvr come out, id assume that either it doesnt break the patents or echostar isnt too concerned about the outcome of this case. Either way, if tivo wins, it would be a royalty thing. See vonage...which they got nailed for millions but changed their technology.


so echostar would have to pay TiVo a monthly fee each and every month for each of its DVR's that are infringing? And who decides what that dollar amount should be?

How long would it have to do this? Until the patents expire (which is how long?)? Or until they swap out the boxes that are infringing?


----------



## dswallow

BlackBetty said:


> so echostar would have to pay TiVo a monthly fee each and every month for each of its DVR's that are infringing? And who decides what that dollar amount should be?


Typically they'll have to pay for past infringement and will have to either cease infringing or come to a mutual agreement to license the technology they were infringing upon to continue using the infringing equipment. The court won't usually force a royalty arrangement for "future" infringement.


----------



## davezatz

shadowfax9x said:


> I would like to know about the visual body language exhibited by the judges during oral arguments... Smiles and scowls may provide a clue on how they are leaning... Hopefully, Brother Dave will fill us in...
> 
> ... and I wonder about the panel's attention span with this extra heavy docket...


If I can break away for a few hours, I'll go check it out. I suppose my typical blogging attire of shorts, a t-shirt, and flip-flops won't fly in court.  More importantly, I doubt any sort of cameras, laptops, etc will be permitted. So expect stick figure drawings. Hopefully I'll be able to convey those smiles or scowls.


----------



## timckelley

I just called AT&T with questions about my DSL service, and she immediately tried to sell my Dish Service with a Dish DVR. She asked how much I paid for cable, and then she said she was beating my price by about $5, and couldn't understand why I wouldn't take the offer.

But the Dish DVR is $5 extra, so she said she'd waive that. Then I told her about the UI differences, and about the lawsuit, and I told her I didn't think it wise to get a DVR from her anyway without knowing how this lawsuit's going to end. She confessed she knew nothing about the this lawsuit, and then she stopped trying to sell me on the DVR.


----------



## shadowfax9x

davezatz said:


> If I can break away for a few hours, I'll go check it out. I suppose my typical blogging attire of shorts, a t-shirt, and flip-flops won't fly in court.  More importantly, I doubt any sort of cameras, laptops, etc will be permitted. So expect stick figure drawings. Hopefully I'll be able to convey those smiles or scowls.


That's precisely the reason why you're our newest and _bestest_ friend... I have a life long friend who sits on the 5th Circuit and he once told me that judges are no different than jurors in forming a premature opinion about a case... He added that it's human nature and a judge needs to constantly pinch himself in order to remain neutral...

I'm muttering a little prayer that a strict constructionist like Judge Gajarsa is going to be sitting on Panel J...


----------



## mtchamp

davezatz said:


> If I can break away for a few hours, I'll go check it out. I suppose my typical blogging attire of shorts, a t-shirt, and flip-flops won't fly in court.  More importantly, I doubt any sort of cameras, laptops, etc will be permitted. So expect stick figure drawings. Hopefully I'll be able to convey those smiles or scowls.


I hope you can make it because even though we are going to get transcripts, it would be nice for someone to tell us how all the parties came accross. Maybe we can get a sense of where this is headed from body language. Maybe some things are said that don't get recorded by the court. It would be really cool to get your impressions. Thanks.


----------



## BlackBetty

mtchamp said:


> I hope you can make it because even though we are going to get transcripts, it would be nice for someone to tell us how all the parties came accross. Maybe we can get a sense of where this is headed from body language. Maybe some things are said that don't get recorded by the court. It would be really cool to get your impressions. Thanks.


+1

dang, I just read on dave zatzs blog that he talked to an analyst covering the trial, and that analyst told him that it could take 6 months or more to get a final order on this case.

This is crazy. Its unfair to give E* all this extra time to come up with a dvr solution that doesn't infringe on TiVo.


----------



## BlackBetty

If TiVo wins the appeal, will E* be forced to cover all of TiVo's legal expenses it has incured fighting E* in the courts? I would assume that number would be sky high.


----------



## timckelley

BlackBetty said:


> I would assume that number would be sky high.


Let's hope so.


----------



## Doh

BlackBetty said:


> If TiVo wins the appeal, will E* be forced to cover all of TiVo's legal expenses it has incured fighting E* in the courts? I would assume that number would be sky high.


I think legal fees can be awarded for "willful" infringement, but that is pretty rare-- the idea is that the infringement was deliberate and obvious.


----------



## SullyND

BlackBetty said:


> This is crazy. Its unfair to give E* all this extra time to come up with a dvr solution that doesn't infringe on TiVo.


If memory serves, the current ones may not infringe. It doesn't really matter, it's kind of like telling the officer who is writing you a ticket "but officer, I am not speeding NOW".


----------



## BlackBetty

Here is an article giving a good summary of whats to come. Interesting read.
http://www.hollywoodreporter.com/hr...ness/news/e3i298d60247271e2fe10a0794df3cb982d


----------



## kmill14

Interesting blurb from the article:

"On Wednesday, analyst Jeff Schreiner of American Technology Research initiated coverage of TiVo with a "buy" rating and $11 target, saying there's a 60% chance TiVo will win the appeal. He argued "*Dish's brief does not provide legal basis for dismissal or retrial.*"

Has anyone see this brief? Is it accessable?

and.....

"While EchoStar identifies several reasons for an overturned decision -- including some that hinge on ambiguous legal procedures -- *a main one is that TiVo's patents primarily relate to analog signals. TiVo, of course, denies that its patents ignore digital satellite TV.*

Can anyone speak to this argument?


----------



## BlackBetty

*BIG* day today! Zatz you going to be there in person?


----------



## timckelley

If Echostar loses today, I wonder if they will choose to press on to the United States Supreme Court.


----------



## kmill14

Its doubtful we will find out today, but I am sure they would pursue it at the SC level. What would they have to lose at that point?


----------



## timckelley

I suppose they'd lose the legal fees associated with such an appeal.


----------



## BlackBetty

timckelley said:


> If Echostar loses today, I wonder if they will choose to press on to the United States Supreme Court.


we could hear anytime after today, it could come tomorrow, or it could come a year or more from now.

Word on the street is that it will probably come 6 months from now. I wish it were tomorrow!!


----------



## Curtis

http://biz.yahoo.com/ap/071004/echostar_tivo.html?.v=1

Appeals Court Leans Toward TiVo
Thursday October 4, 12:02 pm ET
By Christopher S. Rugaber, AP Business Writer
Court Appears Sympathetic to TiVo's Claims in Patent Dispute With EchoStar

WASHINGTON (AP) -- A three-judge appeals court panel signaled Thursday it is likely to rule at least partly in favor of TiVo Inc. in its patent dispute with EchoStar Communications Corp.
EchoStar is seeking to overturn a lower court decision last year that ruled the Englewood, Colo.-based satellite broadcaster had infringed on patented TiVo technology that allows viewers to record one program while watching another. The court awarded TiVo $89.6 million in damages.

TiVo sued EchoStar in 2004, alleging that its digital video recorders infringed on TiVo's "time warp" technology. TiVo, based in Alviso, Calif., pioneered digital recorders that allow viewers to pause, rewind and fast forward live television shows.


----------



## BlackBetty

"Partly in Favor"

WTF does that mean? The article said that it could lower the damages award earlier awarded, and also could send the trial back down for additional hearings.

ARGGGHHHHH Please no Partial finding!!!!!!!!!!!!!!!!!!!!!!!!!


----------



## timckelley

"at least partly in favor" could be "totally, 100% in favor". 

That panel NEEEEEEDDDSS to sentence Echostar to a Vonage-style fate.


----------



## jmoak

BlackBetty said:


> The article said that it could lower the damages award earlier awarded, and also could send the trial back down for additional hearings.


Actually, Donald Dunner, EchoStar's lawyer said that.

No surprize at all. I would expect a statement like that from Echostar's lawyer.


> A ruling isn't expected for about six months, lawyers involved with the case said.


THAT'S the sentence I found appalling.


----------



## kmill14

BlackBetty said:


> "Partly in Favor"
> 
> WTF does that mean? The article said that it could lower the damages award earlier awarded, and also could send the trial back down for additional hearings.
> 
> ARGGGHHHHH Please no Partial finding!!!!!!!!!!!!!!!!!!!!!!!!!


Relax. Its one beat writer's spin. The E* lawyer actually said it should be sent down to the lower court. What else does he have ot argue at this point?

It seemed to me based on this from a judge:

If the jury accepted TiVo's description of the scope of its patent, "isn't that the end of the case?" Plager asked."

that the judges have no valid argument to NOT side with Tivo re: infringement. If there is no reason to overturn the jury verdict, then why would they do it all again?


----------



## davezatz

I put on a tie for that? Man, it was boring!

I'm not sure I agree with the AP report - the judges were playing devil's advocate and asking all sorts of questions. I don't think you could say they seemed to be preferring one side over the other. Perhaps he concluded that because one line of question from the judges was what happens to the original award & injunction if they invalidate some claims, but not all three?

I posted a brief summary here:
http://www.zatznotfunny.com/2007-10/tivo-v-echostar-boredom-in-the-courtroom/

I noticed a few familiar faces in the crowd, including TiVo's lead council M.Zinn and their IR guy. Also a couple TiVo analysts I know. No CEOs were present.


----------



## timckelley

This is like a chess game where checkmate is inevitable, but the loser refuses to resign. They fight until the bitter end until the sherrif takes their money at gunpoint gives it to the plaintiff.

Echostar is a soooorrreee loooooOOOOSSERRRR!!!


----------



## davezatz

jmoak said:


> "A ruling isn't expected for about six months, lawyers involved with the case said."
> 
> THAT'S the sentence I found appalling.


I was told by an observer that if a simple affirmation isn't rendered in the next week or so, expect anywhere between 3-8 months before we hear something.


----------



## BlackBetty

I wonder if a settlement could be in the near future. Although E* seems like the type to rather roll over and die before playing nice.


----------



## MichaelK

timckelley said:


> This is like a chess game where checkmate is inevitable, but the loser refuses to resign. They fight until the bitter end until the sherrif takes their money at gunpoint gives it to the plaintiff.
> 
> Echostar is a soooorrreee loooooOOOOSSERRRR!!!


actually if echostar's handling of distant networks is any indication they will run their pawns around the board as long as possible untill there are no more moves to be made- then at 2 minutes to midnight when checkmate is assured they will take their king off the board and put it on another board and thumb their noses at the tivo's checkmate.

who knows maybe their whole split the hardware from the rest of the company move is their way to put the king on a new board in 6 months when all the appeals are done.....


----------



## samo

MichaelK said:


> actually if echostar's handling of distant networks is any indication they will run their pawns around the board as long as possible untill there are no more moves to be made- then at 2 minutes to midnight when checkmate is assured they will take their king off the board and put it on another board and thumb their noses at the tivo's checkmate.
> 
> who knows maybe their whole split the hardware from the rest of the company move is their way to put the king on a new board in 6 months when all the appeals are done.....


There is a distinct possibility that there are talks between TiVo and E* behind the closed doors on a settlement. It is possible that E* wants one time licensing fee like SONY got vs ongoing royalty like DirecTV or Comcast. Splitting the company would allow both TiVo and E* to save the face and would allow TiVo to continue with royalty path for future customers without setting the example of allowing programming reseller get away with one time fee.


----------



## kmill14

They never would have had today's argument phase if they were in serious negotiations. E* is going to take it as far as it can before its forced to truly make a decision. Tivo's business model does not support 1-time fees at this point, or they would still offer lifetime memberships to customers. They want recurring revenues to help grow their business.


----------



## MichaelK

samo said:


> There is a distinct possibility that there are talks between TiVo and E* behind the closed doors on a settlement. It is possible that E* wants one time licensing fee like SONY got vs ongoing royalty like DirecTV or Comcast. Splitting the company would allow both TiVo and E* to save the face and would allow TiVo to continue with royalty path for future customers without setting the example of allowing programming reseller get away with one time fee.


could be- but I'd say DISH doesn't sign any deal untill AFTER the supreme court is done. Ergen is a gambler.


----------



## TREND_WIRE

MichaelK said:


> could be- but I'd say DISH doesn't sign any deal untill AFTER the supreme court is done. Ergen is a gambler.


 In the long run the case will be very profitable to TiVo. Say, 8 months. TiVo will continue to amount Dish payments for the 4 million boxes, plus all the boxes added.

Echostar will not be able to split, and an acquisition by AT&T may be jeopardized; So that Echostar maybe now more interested in a settlement with TiVo than TiVo with Echostar. In other words, Dish lost more in its own long scheme.


----------



## shadowfax9x

davezatz said:


> I put on a tie for that? Man, it was boring!


A big phat THANK YOU for taking the time to attend the appeal hearing...

Just in case you were unable to attend, I had asked two ΔΦΕ and Georgetown Law students to check out the proceedings for me... While they haven't provided me with the full written report, they did call me and gave me some clues about the "big event".... (I should have waited for the report before I ordered the two kegs of beer for their frat house)

They too, thought it was boring as hell and not the Thrilla 'n Manilla that they had expected and neither side got their money's worth in legal fees... However, they did sense a showdown developing between a pro Echostar - Judge Bryson and a pro TiVo - Judge Plager... The swing vote may be up to Judge Irene Keeley to determine the final outcome... These two little degenerates spent more time telling me about how "hot" Judge Keeley was than about the case at hand....

Judge Keeley was apparently called in to hear cases as half of the CAFC judges were hearing cases in NYC... I did a quick search on Judge Keeley and found that she is the Chief Judge in the Northern District Court of West Virginia... There is not a whole lot of data on her rulings, but she once stated that patents do inhibit competition... However, she is noted for her landmark decision in Ortho-McNeil v. Mylan when she ruled in favor of the patentee... Judge Kelley also appears to have her head screwed on straight when she dismissed a case where a group of parents filed a class action lawsuit against 100 distillers and Judge Keeley ruled "parents can't blame alcohol producers when their underage children violate the law and purchase alcohol"...

That being said... I think we are looking at a 1-1-1 deadlock at the moment... (I wonder if Judge Keeley likes flowers????)

Once again, Dave... THANK YOU


----------



## kmill14

Now THATS a good scoop Shadowfax. Good stuff!


----------



## BlackBetty

I hope that the judges take into consideration that E* was found to have been willfully infringing and that it has caused a huge blow to TiVo as a company in lost market share. and with that in mind the judges speed up the verdict.


----------



## 20TIL6

shadowfax9x said:


> (I wonder if Judge Keeley likes flowers????)


Better yet, I wonder if she would like a new TiVo HD with a gift subscription. As much as I have enjoyed having TiVo, my wife has enjoyed it more. I think women are more partial to the TiVo brand than men. That's just based upon my wife's reaction and the reactions of her girlfriends that have gotten one based on her recommendation.


----------



## SeanTivo

shadowfax9x said:


> Just in case you were unable to attend, I had asked two ΔΦΕ and Georgetown Law students to check out the proceedings for me... While they haven't provided me with the full written report, they did call me and gave me some clues about the "big event".... (I should have waited for the report before I ordered the two kegs of beer for their frat house)
> 
> ...
> 
> These two little degenerates spent more time telling me about how "hot" Judge Keeley was than about the case at hand....


Are you sure those 2 aren't BS'ing you? I did a quick google images search on Judge Keeley and "Hot" is not the first word that comes to mind. I'm sure she was OK in her day but that day was about 30 years ago.


----------



## dswallow

SeanTivo said:


> Are you sure those 2 aren't BS'ing you? I did a quick google images search on Judge Keeley and "Hot" is not the first word that comes to mind. I'm sure she was OK in her day but that day was about 30 years ago.


----------



## davezatz

shadowfax9x said:


> The swing vote may be up to Judge Irene Keeley to determine the final outcome... These two little degenerates spent more time telling me about how "hot" Judge Keeley was than about the case at hand....


I was in the second row behind the Satellite News freelance reporter... Judge Keeley did seem to have some cool glasses, but I don't think she spoke once during the proceedings. Bryson intrduced her as a visiting judge from West Virginia and thanked her for contributing and something about providing a different perspective from the other side.

Again, I'm not sure how much could be read into Bryson's and Plager's questions and which "side" they were on. They both had a lot of questions on terminology and technology. Plager was joking with the Echo attorney Drunner, so how does one know if he's pro-TiVo? Like Kunal (of Bear Stearns) said, it's hard to handicap this. Generally speaking, I wonder how frequently lower court jury decisions are overturned? That was an issue that Bryson briefly focused on when he asked why the jury's decision should be invalidated. The judges were also very lenient with the clock and let both sides use extra time since this is a "complex" case. As I said in my post, I think the decision will be made based on what was in Echo's blue book and TiVo's response (red book), and the oral arguments allowed the judges to get some clarification.


----------



## BBURNES

Davezatz,

Are the "red book" and "blue book" briefs submitted yesterday available online? If not, will they be available in the near future?

Or do we have to wait until the judges make their decision?


----------



## davezatz

I'm not sure if they are. I'm also not sure when they were actually submitted. May have been awhile ago, since it seemed like the judges were somewhat familiar with the contents. I also remember a few months ago, the courts were slow in getting documents online and I took the subway down there to photocopy some. Though these things were too large to reasonably photocopy anything but an abstract.


----------



## peteypete

Man, if Dave thought it was boring, try listening to it as an audio file!!

http://www.cafc.uscourts.gov/oralarguments/mp3/2006-1574.mp3


----------



## kmill14

i was just about to post this link...and I found it crazily interesting. Is that sick?


----------



## ITVGuy2000

I too find it fascinating.

They need expert witnesses to clarify things like separate, objects, or collections.

The MPEG standard clearly delineates audio and video elementary streams, and their relationship in a transport stream.

In any case, very very cool stuff. :up:


----------



## ITVGuy2000

LOL!!!

OMG, they are arguing MPEG!!!  

Actually it's kind of scary when you think about it.


----------



## BlackBetty

ITVGuy2000 said:


> They need expert witnesses to clarify things like separate, objects, or collections.


Which was done already in the trial that was ruled in TiVo's favor.


----------



## Johncv

If you all think the TiVo and E* case is fun, check out this one now in court.....

http://www.signonsandiego.com/uniontrib/20071007/news_1n7scotus.html 
Lawyers are going to have field day.


----------



## dswallow

Johncv said:


> If you all think the TiVo and E* case is fun, check out this one now in court.....
> 
> http://www.signonsandiego.com/uniontrib/20071007/news_1n7scotus.html
> Lawyers are going to have field day.


Class Action lawyers should have their own proceeds from such lawsuits be limited to perhaps 100 times the average remuneration obtained for an individual class member.

That should put an end to the frivolity.


----------



## shadowfax9x

davezatz said:


> Again, I'm not sure how much could be read into Bryson's and Plager's questions and which "side" they were on.


I'm still convinced that it will be up to Judge Keeley to determine the final outcome of this appeal and I'm at a complete loss as to how the AP reporter headlined that "Appeals Court Appears Sympathetic to TiVo's Claims in Patent Dispute With EchoStar."

It is important to remember that it was the same Judge Bryson who stayed Judge Folsom's injunction when he held that "Echostar had met its burden of showing that there is a substantial case on the merits and the harm factors mitigate in its favor." You can bet your last dollar that Judge Bryson realizes if they send this case back to the E. Texas District Court without any firm direction, Judge Folsom will punish Echostar by immediately implementing his disconnect injunction...

A real shame that Judge Arthur Gajarsa or Judge Pauline Newman didn't have the opportunity to hear the oral arguments as both were off hearing cases in NYC... Gajarsa came up through the ranks as an USPTO patent examiner and Newman is a fierce proponent of intellectual property rights...


----------



## HDTiVo

shadowfax9x said:


> I'm at a complete loss as to how the AP reporter headlined that "Appeals Court Appears Sympathetic to TiVo's Claims in Patent Dispute With EchoStar."


It draws attention, readership and revenue.

I still haven't heard the MP3, but did you hear anything that sounded other than pro-forma, and that did actually give away any leanings?

I mean the stuff I've read sounds pretty standard. Questions like 'why should the Jury be overturned?' are just lobs saying 'go ahead, tell us your story' ... 'and we'll think about it later,.' Aren't they?


----------



## BlackBetty

The wait is killing me and its only been 4 days


----------



## shadowfax9x

Federal Circuit vacates and remands Judge Folsom's "ongoing royalty" order in Paice v. Toyota... 10/18/2007

_For the reasons discussed, we vacate and remand the portion of the district court's final order insofar as it relates to the imposition of an ongoing royalty at a rate of $25 per infringing vehicle. In all other respects, we affirm._


----------



## BlackBetty

shadowfax9x said:


> Federal Circuit vacates and remands Judge Folsom's "ongoing royalty" order in Paice v. Toyota... 10/18/2007
> 
> _For the reasons discussed, we vacate and remand the portion of the district court's final order insofar as it relates to the imposition of an ongoing royalty at a rate of $25 per infringing vehicle. In all other respects, we affirm._


huh?


----------



## Curtis

BlackBetty said:


> huh?


Indeed. That case has nothing to do with TiVo.

" The U.S. Appeals Court for the Federal Circuit ruled that the lower court was correct in its ruling that Toyota infringed on one patent.

But it said that the lower court gave no reasoning behind the decision to award damages of $25 for each of the three vehicles that include the infringed patent. It vacated that order and asked the Texas court to revisit it. (Reporting by Diane Bartz, editing by Brian Moss)"


----------



## kmill14

Paice is a non-practicing company that is just trying to get royalties for its patents. This type of action by Paice is very much frowned upon by the upper courts it seems.

Tivo on the other hand has been directly affected by E*'s decision to infringe on Tivo's patents rather than license them or use Tivo's whole software package.


----------



## timckelley

BlackBetty said:


> The wait is killing me and its only been 4 days


The wheels of justice are turning slooooOOOOWWWLLLYY, and I officially object to this.


----------



## Curtis

timckelley said:


> The wheels of justice are turning slooooOOOOWWWLLLYY, and I officially object to this.


Very helpful contribution to the thread.


----------



## shadowfax9x

BlackBetty said:


> huh?


The Federal Circuit decided to play it safe and punt in Paice because they have been burnt on any replay challenge by the SCOTUS who have overturned their last ten decisions...


----------



## HDTiVo

shadowfax9x said:


> Federal Circuit vacates and remands Judge Folsom's "ongoing royalty" order in Paice v. Toyota... 10/18/2007
> 
> _For the reasons discussed, we vacate and remand the portion of the district court's final order insofar as it relates to the imposition of an ongoing royalty at a rate of $25 per infringing vehicle. In all other respects, we affirm._


Is this the same 3 that heard TiVo?


----------



## Curtis

HDTiVo said:


> Is this the same 3 that heard TiVo?


No. All three were different judges.


----------



## kmill14

Curtis said:


> No. All three were different judges.


Even if it was the same 3 judges, its not the same type of case. The judges were concerned with Paice because they don't actually compete with Toyota...they just want to collect money on patents and thats it.


----------



## Curtis

kmill14 said:


> Even if it was the same 3 judges, its not the same type of case. The judges were concerned with Paice because they don't actually compete with Toyota...they just want to collect money on patents and thats it.


Huh? Paice won.

Judge Folsom set the $25 royalty, not a jury. The Appeals Court just said that Judge Folsom should have provided rationale for the $25 amount.

"In this case, the district court, after applying the four-factor test for a permanent 
injunction and declining to issue one, imposed an ongoing royalty sua sponte upon the 
parties. But, the district courts order provides no reasoning to support the selection of $25 per infringing vehicle as the royalty rate. Thus, this court is unable to determine 
whether the district court abused its discretion in setting the ongoing royalty rate. 
Accordingly, we think it prudent to remand the case for the limited purpose of having the district court reevaluate the ongoing royalty rate. Upon remand, the court may take additional evidence if necessary to account for any additional economic factors arising out of the imposition of an ongoing royalty. The district court may determine that $25 is, in fact, an appropriate royalty rate going forward. However, without any indication as to why that rate is appropriate, we are unable to determine whether the district court abused its discretion."


----------



## kmill14

My point was more in response to shadowfax bringing this case up at all. Its completely irrelevant to the Tivo case.


----------



## Curtis

kmill14 said:


> My point was more in response to shadowfax bringing this case up at all. Its completely irrelevant to the Tivo case.


Apparently he just likes to stir up s***.


----------



## HDTiVo

Has E* made any challenge to the size and nature of the monetary award either in this appeal process or anywhere else?


----------



## kmill14

HDTiVo said:


> Has E* made any challenge to the size and nature of the monetary award either in this appeal process or anywhere else?


Yes, in the argument process, they did say they thought the award could be adjusted down (when the judges asked if it should) if some of the claims were thrown out. Tivo of course said no, because 1 infringed claim negated the entire box.


----------



## HDTiVo

kmill14 said:


> Yes, in the argument process, they did say they thought the award could be adjusted down (when the judges asked if it should) if some of the claims were thrown out. Tivo of course said no, because 1 infringed claim negated the entire box.


So they only have argued based on number of claims, not the use of both per box and per month per box?


----------



## shadowfax9x

kmill14 said:


> My point was more in response to shadowfax bringing this case up at all. Its completely irrelevant to the Tivo case.


The relevance is that if this case went before the Federal Circuit prior to the SCOTUS decision in eBay, it is highly probable that Paice would have gotten their permanent injunction against Toyota... Since eBay, permanent injunctions are no longer a slam dunk in patent disputes and it may weigh in the Federal Circuit's decision in Tivo v. Echostar...

By the way... it was Toyota who wasn't successful with their appeal in the Paice case...


----------



## shadowfax9x

Curtis said:


> Judge Folsom set the $25 royalty, not a jury.


I believe it was the jury who determined that $25 was reasonable compensation for each Toyota drive train that had infringed on Paice's technology, resulting in the $4,269.950 award... Judge Folsom simply carried the $25 amount forward to any and all future infringement... I think it is reasonable to believe that the Federal Circuit had a problem with that and politely told Judge Folsom to hammer out an agreement between the parties and make this case go away...


----------



## BlackBetty

HDTiVo said:


> Is this the same 3 that heard TiVo?


I'm curious how long it took the appeals judges to come back with this verdict after oral arguments were heard.


----------



## shadowfax9x

BlackBetty said:


> I'm curious how long it took the appeals judges to come back with this verdict after oral arguments were heard.


Since no one else stepped in and answerd your question...

Oral arguments in Paice took place on May 7, 2007....

Chuck, Come Home!!!


----------



## Squeege96

Any updates?


----------



## timckelley

Squeege96 said:


> Any updates?





davezatz said:


> I was told by an observer that if a simple affirmation isn't rendered in the next week or so, expect anywhere between 3-8 months before we hear something.


Davezatz said this 25 days ago.


----------



## BlackBetty

timckelley said:


> Davezatz said this 25 days ago.


do you guys think that the longer this takes, the less likely they will return with a verdict 100% in TiVo's favor? I would think that if it was a slam dunk, they would come right back in TiVo's favor. I wonder if they are wrestling with the idea of coming back in partial favor for TiVo and therefor sending it back down to the lower courts to rework the dollars and cents.


----------



## BlackBetty

shadowfax9x said:


> Since no one else stepped in and answerd your question...
> 
> Oral arguments in Paice took place on May 7, 2007....
> 
> Chuck, Come Home!!!


so it took them about a week and a half shy of 6 months.


----------



## MonroeEfford

Guess I don't understand how deciding in "partial favor" of Tivo would affect the amount of the award. Afterall, Tivo pulled out of requesting "willful" damages....wasn't the original damage award based on revenue deemed lost to Tivo?...whether it's one claim or five claims, that does not change the revenue lost to Tivo. Also, what were the instructions to the original jury as to why they were contemplating separate claims of the patent?...did it relate to the amount of the award or was it simply to make sure that each was considered since Tivo was suing Echo based on any/all of them?...


----------



## BlackBetty

Plus don't they have to decide if they want to uphold the injuction of E*'s DVR's. I hope they uphold this, because it will give TiVo tremendous leverage working out a fee structure with E* going forward.


----------



## Curtis

MonroeEfford said:


> Guess I don't understand how deciding in "partial favor" of Tivo would affect the amount of the award.


It wouldn't. TiVo wouldn't have licensed one claim or two claims or whatever to Dish for less money that TiVo would have charged to license the whole patent.


----------



## ZeoTiVo

BlackBetty said:


> do you guys think that the longer this takes, the less likely they will return with a verdict 100% in TiVo's favor? I would think that if it was a slam dunk, they would come right back in TiVo's favor. I wonder if they are wrestling with the idea of coming back in partial favor for TiVo and therefor sending it back down to the lower courts to rework the dollars and cents.


they may see the infringement as a slam dunk but are probably not coming right out with somehting because they have to deal with the consumers who innocently have infringing DVRs. Echostar is most likely stonewalling on any agreement on that and daring the courts to tell them to shut them off.


----------



## MonroeEfford

Interesting updates out on USPTO site showing Tivo arguments for overturning claims that were previously rejected.

http://portal.uspto.gov/external/portal/pair


----------



## dswallow

MonroeEfford said:


> Interesting updates out on USPTO site showing Tivo arguments for overturning claims that were previously rejected.
> 
> http://portal.uspto.gov/external/portal/pair


We need a control number or patent number to get to it; the link you gave isn't a direct one.


----------



## Curtis

dswallow said:


> We need a control number or patent number to get to it; the link you gave isn't a direct one.


application number 90/007750


----------



## BlackBetty

very interesting. I read through the arguments last night. hopefully the re-examiner will see things TiVo's way.


----------



## MichaelK

anyone care to summarize the patent filing for those of us without the time to read ourselves?


----------



## HDTiVo

MichaelK said:


> anyone care to summarize the patent filing for those of us without the time to read ourselves?


+1

... and some "educated" critical interpretation of the strength of TiVo's arguments.


----------



## acvthree

I probably shouldn't respond here because I'm not an expert. There have been a number of experts on this thread, but I think they just got tired of some of the exchanges (what happened to Chuckybox?).

From a lay perspective, the patents mostly deal with splitting the audio and video streams so that recordings, storage and retrieval can be done cheaply, that is, by a consumer electronics level system.

Some of the patents have been upheld and they seem legitimate to me (lay person). Of the ones that were not upheld, the patent office seemed to be more concerned with the actual wording (overly broad) than with the underlying patent. There have been reports that Tivo is working with the patent office on wording that would reinstate those patents that were questioned.

There has been controversy in this and related threads over legitimacy, but some people seem to question the use of patents at all (an attitude I saw in China, public good and all that).

I don't intend this to substitute for the "educated" critical interpretation. I would like to see that as well. I just thought this might give an overview.

Al


----------



## MichaelK

one of the posts at a stock talk place explained part of the patent appeal like this ('scuse me if my layman interpretation messes it up):

one of the reasons some of the tivo patents specifics (claims I think is the term) were tossed was becasue the examiner found that an earlier patent made reference to what tivo claimed and so that earlier patent was prior art. But the poster on the stock board said tivo's appeal is based on the fact that no previous claims existed only a mention in the summary explanation of the other patent. The poster who claimed to work in the feild said that seemed like a good way to get those claims reinstated becasue the law/regulation says that you can't prove prior art with a summary statement but rather it must be in a specific claim - and it was NOT. He went on to say that tivo basically just needed to show some proof like a prototype or notes that existed prior to the date of that summary's submittal and it would show that they thought of it first and also claimed it first. 

Apparently thinking of it first (which the other summary implies since it was submitted several months before tivo) is not the same as claiming it first. You need to think of it before some submits anything about it and then be the first to claim it was the gist I got- and apparently tivo did both.

The experts can feel free to correct my interpretation but that's the gist I got from the fool.


----------



## BlackBetty

Interesting comment by Ergen.
http://www.rapidtvnews.com/default....ubname=&pform=&sc=1966&hn=rapidtvnews&he=.com



> One market analyst, Bear Stearns Kunal Madhukar, summed up the situation by saying he was incredibly optimistic that EchoStars DISH platform and TiVo would shortly wrap up their IP dispute. *On the 3Q conf call, [Ergen] stated that DISH will have a conversation with TiVo on how the two companies can work together, regardless of the litigation outcome.* However, the relative nature of those negotiations and the strength of those negotiations will depend a lot about how the court of appeals rules. We perused previous conference call transcripts, where the company stated that (i) it was confident of winning the case (4Q06 call), and (ii) now that TiVo had disclosed exactly how its patent worked, EchoStar's "set of world-class digital engineers" will certainly be looking at alternative technologies (3Q06 call). This is the first time DISH has ever talked about any negotiation. We view this step as a positive for TiVo in the long term, says Bear Stearns.


----------



## timckelley

I hope the court rules in TiVo's favor and that any negotiations lean *heavily and onerously* in TiVo's favor. Echo should pay for what they've done, and for what they've put TiVo though.


----------



## ZeoTiVo

timckelley said:


> I hope the court rules in TiVo's favor and that any negotiations lean *heavily and onerously* in TiVo's favor. Echo should pay for what they've done, and for what they've put TiVo though.


negotiating with Ergen is probably a lot like loosing a leg to get out of a iron jaw trap.. Painful yet still prolonged far further then most pain would be endured


----------



## ZeoTiVo

acvthree said:


> From a lay perspective, the patents mostly deal with splitting the audio and video streams so that recordings, storage and retrieval can be done cheaply, that is, by a consumer electronics level system.


yes that is exactly why the patent is important to TiVo. It is the manner of doing the recordings with consumer affordable hardware that they want to protect. The majority of cable company DVRs most likely do not violate the TiVo patent and indeed the early years of crappy cable company DVR's that have hardware issues is precisely because they did not infringe on TiVo inc.s design  but had to work out a different hardware/software design of their own. the fact they record media to a hard drive in itself does not make them infringe.

What TiVo is protecting is the *hard work* that made them a *great *DVR, and is not about keeping DVRs out of the market. In fact TiVo would love to see 100% DVR penetration in the market as then TiVo can sell a TiVo and not have to jump the hurdle of why someone should get a DVR let alone a specific one like TiVo brand.

The patent system is working as it should in this case of protecting the innovation that TiVo worked out and not make other such innovators fear someone can just use their hard work with no recompense.


----------



## BlackBetty

Its almost been 2 months since the oral arguments. I wonder what TiVo will have to say about it tomorrow during their quarterly annoucements.


----------



## Curtis

It appears that the USPTO has dropped the patent reexamination. On their website the status shows as: "Reexam Terminated -- Notice of Intent to Issue a Reexamination Certificate Mailed ".


----------



## kmill14

Curtis said:


> It appears that the USPTO has dropped the patent reexamination. On their website the status shows as: "Reexam Terminated -- Notice of Intent to Issue a Reexamination Certificate Mailed ".


Besides the judges actually throwing out the appeal or E* settling, this news is as big as it gets for Tivo.


----------



## ZeoTiVo

Curtis said:


> It appears that the USPTO has dropped the patent reexamination. On their website the status shows as: "Reexam Terminated -- Notice of Intent to Issue a Reexamination Certificate Mailed ".


Do I read this correctly as they are now letting all the patents stand as initially entered into the patent office?


----------



## Curtis

ZeoTiVo said:


> Do I read this correctly as they are now letting all the patents stand as initially entered into the patent office?


The reexamination is over and TiVo never appealed so it looks like the patent stands as written.


----------



## BlackBetty

Yes Yes Yes Yes!!!!!!!!!!!!!!!!!!!!!!!!!!!!


----------



## timckelley

Now, we get to see Echostar bend over and pay through the nose for what they've done. Let's hope it will be extremely painful. 

Are there a bunch of DVRs out there that need to be disabled/returned now?

(Or is Echostar now going to appeal to the United States Supreme Court?)


----------



## ufo4sale

Curtis said:


> The reexamination is over and TiVo never appealed so it looks like the patent stands as written.


This is the biggest news I've heard since the case started. Way to go TiVo:up:!!!


----------



## HDTiVo

timckelley said:


> Now, we get to see Echostar bend over and pay through the nose for what they've done. Let's hope it will be extremely painful.
> 
> Are there a bunch of DVRs out there that need to be disabled/returned now?
> 
> (Or is Echostar now going to appeal to the United States Supreme Court?)


The first step is to determine whether it is necessary for Echostar to bend over in order to gain access to its nose.




ufo4sale said:


> This is the biggest news I've heard since the case started. Way to go TiVo:up:!!!


It sounds to me like it would be pretty good news if true, but for all you folks that have insisted the review meant nothing because as long as one claim remained...

I'd like to read why you'd assert this actually has any meaningful impact on the case.


----------



## CuriousMark

HDTiVo said:


> I'd like to read why you'd assert this actually has any meaningful impact on the case.


I hope it strengthens TiVo's negotiating position somewhat when Echostar comes to the table. It should surely strengthen their position when they go after other infringers knowing that their patent is iron clad.

There is even the possibility, though slight, that it will help lure Echostar to the negotiating table sooner rather than later.


----------



## jmoak

HDTiVo said:


> I'd like to read why you'd assert this actually has any meaningful impact on the case.


http://seekingalpha.com/article/179...tent-claims-vs-tivo-to-undergo-re-examination

http://mcsmith.blogs.com/eastern_district_of_texas/2006/09/motion_to_stay_.html

google has a bunch more. (search for "reexamination echostar")


----------



## HDTiVo

Yeah, that argues my view which has been that the re-exam is meaningful, as opposed to the other view which is the re-exam doesn't matter because there would still be one or more claims infringed.


----------



## ZeoTiVo

HDTiVo said:


> I'd like to read why you'd assert this actually has any meaningful impact on the case.


while TiVo only needed the main patents to keep the infringement verdict this does not give *any*wiggle room to E* now and they will have to rely on the merits of an appeal versus taking extra time to go over the claim that TiVo has no enforceable patent.


----------



## Curtis

jmoak said:


> http://seekingalpha.com/article/179...tent-claims-vs-tivo-to-undergo-re-examination
> 
> http://mcsmith.blogs.com/eastern_district_of_texas/2006/09/motion_to_stay_.html
> 
> google has a bunch more. (search for "reexamination echostar")


You are confusing the case TiVo filed against Echostar with the case Echostar filed against TiVo.

The USPTO action today has no bearing on the lawsuit TiVo filed against Echostar.

The reexamination was years away from a conclusion. It would never have impacted the appeal.
Now it is moot because it has been terminated.


----------



## jmoak

Curtis said:


> You are confusing the case TiVo filed against Echostar with the case Echostar filed against TiVo.
> 
> The USPTO action today has no bearing on the lawsuit TiVo filed against Echostar.
> 
> The reexamination was years away from a conclusion. It would never have impacted the appeal.
> Now it is moot because it has been terminated.





> _from my second link:_
> The first case, TiVo, Inc. v. EchoStar Communications, et. al., C.A. No. 2:04-CV-1, was an infringement action in which Defendent TiVo sued Plaintiff for allegedly infringing on its patents covering DVR technology. That matter was tried before a jury and resulted in a verdict in favor of the plaintiff, Defendant TiVo. In this case Echostar moved the Court for a stay of this action in light of patent reexamination proceedings before the United States Patent & Trademark Office ("PTO").


Also, wasn't the patent reexamination the basis for the stay of Tivo's injunction against Echostar selling infringing dvr's?
Is the injunction clear to be enforced now?

As far as Echostar's lawsuit, wasn't the reexam the entire basis of Echostar's counter suit?

btw, I am dang sure no expert nor do I play one on tv.


_"I'm not a doctor, but I play one on TV"_
This line was used in Vick's cough syrup TV commercials during the 1980s. Peter Bergman, who played a doctor on "The Young and the Restless," first uttered the phrase. Legend has it that federal regulators decided that having a TV doctor in the commercials was perceived by the public as a real doctor endorsing the product, thus the famous line was born.


----------



## Curtis

The patent reexamination has never been an issue in the appeal or the injunction in the suit TiVo filed.

I think Echostar's lawsuit is held up by reexamination of their patent.That's because the reexamination started early in the timeline in that case unlike the situation in TiVo's suit. It went to trial.

The reason for the injunction stay is that it is being appealed.


----------



## BlackBetty

From yesterdays earnings call.
http://seekingalpha.com/article/556...0-31-07-earnings-call-transcript?source=yahoo



> Operator
> 
> It is from Kunal Madhukar with Bear Stearns.
> 
> Kunal Madhukar - Bear Stearns
> 
> Thanks for taking the question. Tom, you mentioned about the potential IP opportunity. Given what Charlie Ergen said on the third quarter conference, on his third quarter conference call, and the development at the patent office today, could you give us some more information or visibility on how we should look at the process? And what exactly did the patent office say today?
> 
> Thomas S. Rogers
> 
> Well, we have Matt Zinn, our general counsel, on the phone who can comment on the patent office matter. Matt.
> 
> Matthew Zinn
> 
> Today the patent office issued a notice that it has terminated the reexamination of the time-warp patent. We have not received this notice yet so we don't know exactly what it contains but we're optimistic that all of the time-warp patent claims have been affirmed without modification. So we will know more in the next couple of days.
> 
> Thomas S. Rogers
> 
> We haven't seen anything yet though, so we can't speak to that definitively yet. I think the -- I'm sorry, the other part of your question in terms of --
> 
> Kunal Madhukar - Bear Stearns
> 
> In light of Ergen's comments, how could we get more visibility into how the litigation will be resolved?
> 
> Thomas S. Rogers
> 
> Well, the litigation has been argued before the Federal Circuit Court of Appeals. It sits with them now for a decision. I took Charlie's comments to mean that he recognizes the value of TiVo. I think that TiVo is recognized as a gold standard there. I don't have any comments to make beyond that, other than the fact that we are -- we point with pleasure to the fact that EchoStar does recognize the value that TiVo offers.
> 
> Kunal Madhukar - Bear Stearns
> 
> And a quick follow-up; Matt, if the patent office affirms all the claims without any modification, how does that impact the litigation? There was some discussion about hardware claims and software claims and some of the claims were valid and some were not. How would that change or would that change the litigation at all?
> 
> Matthew Zinn
> 
> I don't think today's action will affect the litigation one way or the other way. In the past, the patent office has affirmed the so-called software claims, the majority of our claims in the patent and some of those claims are at issue in the litigation so regardless of what the patent office does in this action, we don't think it should impact the litigation.
> 
> Kunal Madhukar - Bear Stearns
> 
> Thank you.


----------



## HDTiVo

It would be helpful to have the quote of Ergen's comments.


----------



## 20TIL6

HDTiVo said:


> It would be helpful to have the quote of Ergen's comments.


I can't find it right now, but I think the quote being talked about was Ergen's comments on their appeal and the situation with TiVo. He said, and I am paraphrasing, that they (E*) still believe that they did not infringe on TiVo patents, but that win or lose they planned on having discussions with TiVo on how they could work together going forward.

The quote is out there, I think he said that around the time of DISH's last quarterly results and they were getting punished a bit in the market.


----------



## gonzotek

HDTiVo said:


> It would be helpful to have the quote of Ergen's comments.


20TIL6 has it right... http://oceania.digitalmedianet.com/articles/viewarticle.jsp?id=230991


> "We believe we're right, and we don't believe we infringed," Ergen said. "Win or lose [the appeal] we plan to have conversation with TiVo about how we can work together."


 The article's dated 11/12/07.


----------



## HDTiVo

That's about what I remember, but I'd like to see the actual quote from the E* conference call.


----------



## jmoak

TiVo Statement on the United States Patent and Trademark Office Decision
http://biz.yahoo.com/prnews/071129/aqth099.html?.v=27



> _from PRNewswire:_
> ALVISO, Calif., Nov. 29 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and leader in television products and services for digital video recorders (DVR), offered the following statement today on the United States Patent and Trademark Office (PTO) decision with respect to the reexamination of TiVo's Multimedia Timewarping System patent, U.S. patent number 6,233,389 (the "Time Warp Patent"):
> 
> "We are extremely pleased that the PTO has now found all claims of the Time Warp Patent to be valid after conducting a reexamination of the patent requested by EchoStar. This decision by the PTO is final and not appealable by EchoStar. Today's decision by the PTO brings us another step closer to ending EchoStar's continued infringement and we are hopeful that the United States Court of Appeals for the Federal Circuit will uphold the district court judgment of patent infringement and reinstate the injunction."


----------



## Curtis

TiVo Statement on the United States Patent and Trademark Office Decision
Thursday November 29, 12:55 pm ET


ALVISO, Calif., Nov. 29 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and leader in television products and services for digital video recorders (DVR), offered the following statement today on the United States Patent and Trademark Office (PTO) decision with respect to the reexamination of TiVo's Multimedia Timewarping System patent, U.S. patent number 6,233,389 (the "Time Warp Patent"):

"We are extremely pleased that the PTO has now found all claims of the Time Warp Patent to be valid after conducting a reexamination of the patent requested by EchoStar. This decision by the PTO is final and not appealable by EchoStar. Today's decision by the PTO brings us another step closer to ending EchoStar's continued infringement and we are
hopeful that the United States Court of Appeals for the Federal Circuit will uphold the district court judgment of patent infringement and reinstate the injunction."


----------



## fasTLane

wow! a synchronous duplicate posting down to the minute. Must be a first.


----------



## SCSIRAID

fasTLane said:


> wow! a synchronous duplicate posting down to the minute. Must be a first.


And darn near word for word identical....


----------



## kmill14

And Echostar's response:

"ENGLEWOOD, Colo., Nov. 29, 2007 (PRIME NEWSWIRE) -- EchoStar Communications Corporation (NasdaqGSISH - News) issued the following statement regarding recent developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:
ADVERTISEMENT


``We are disappointed in the Patent and Trademark Office's decision. The decision, however, does not impact in any way our pending appeal to the Federal Circuit. We are hopeful that the Federal Circuit will reverse the district court and find that we do not infringe Tivo's patent.''

"


----------



## ZeoTiVo

Fixed E*'s reply 



Ergen Hot Air said:


> `We are not surprised by the Patent and Trademark Office's decision. The decision, however, does not impact in any way the fact we copied key parts of a Tivo DVR way back when. Since our appeal to the Federal Circuit is not based on any facts regarding the valid patents by TiVo, inc. we are really, really hoping that the Federal Circuit will reverse the district court and find that we do not infringe Tivo's patent just because we say we do not and have posted as much repeatedly.''


----------



## 20TIL6

:up::up::up:


----------



## jfh3

kmill14 said:


> ``We are disappointed in the Patent and Trademark Office's decision. The decision, however, does not impact in any way our pending appeal to the Federal Circuit. We are hopeful that the Federal Circuit will reverse the district court and find that we do not infringe Tivo's patent.''
> 
> "


Of course, had the USPTO decision gone the other way, you can bet your bottom dollar that Dish would not have stated that it doesn't impact the appeal.

Notice that they are "disappointed" and "hopeful". Far cry from "confident" that they will win the appeal from previous statements.


----------



## Hew

So does the PTO decision mean that the federal court will move more quickly? Or are we in for another 3 to 6 months of nothing. 

Could someone please explain to me what is taking so long. I know that the TiVo case isn't the only one in the judge's mind, but does it really take that long to make a decision. What is the judge thinking right now? 

Thanks


----------



## dswallow

Hew said:


> What is the judge thinking right now?


Probably about his Christmas vacation and maybe tentatively planning his Easter vacation; though he's already figured out what he's doing for Valentine's Day. Oh, and then there's Aunt Mabel's visit in January he's gotta plan for.


----------



## Hew

dswallow said:


> Probably about his Christmas vacation and maybe tentatively planning his Easter vacation; though he's already figured out what he's doing for Valentine's Day. Oh, and then there's Aunt Mabel's visit in January he's gotta plan for.


LOL, your probably right. Maybe he/she is saving money to go on a space cruise with Virgin Galactic or something. : P

Does the USPTO, send a letter to the judge as well stating the affirmation of that patent? If yes, doesn't it mean that he/she will make the decision quicker? Is there a deadline here, or could the judge just make an announcement whenever he/she comes up with the decision?

Hopefully thats before liftoff.

http://virgingalactic.com/flash.html


----------



## Curtis

Hew said:


> So does the PTO decision mean that the federal court will move more quickly? Or are we in for another 3 to 6 months of nothing.


The USPTO decision has no relationship to the appeal. Remember that Rim had to pay $612 million to NTP for patent infringement in the Balckberry suit even though the USPTO had said their patent was invalid. That's because NTP had years to go with appeals of the USPTO opinion. Meanwhile the infringement judge had to make a decision about infringement. They are two separate things.


----------



## Johncv

This is on CNET today.....

http://www.news.com/EchoStar-shares-off-on-speculation-of-spectrum-bid/2100-1036_3-6221385.html?tag=nefd.top


----------



## TREND_WIRE

kmill14 said:


> And Echostar's response:
> 
> ``We are disappointed in the Patent and Trademark Office's decision. The decision, however, does not impact in any way our pending appeal to the Federal Circuit. We are hopeful that the Federal Circuit will reverse the district court and find that we do not infringe Tivo's patent.''
> 
> "


Echostar REQUESTED reexamination, did help TiVo reaffirm its Time Warping Patent. Comparatively, that, is like a DNA test for patents. Echostar is behaving as any ordinary delinquent denying its crime of willful infringement, which can result a lot more costly for Echostart for trying to tamper with justice. Remember Echostar insulted the Texas jury, also disrespected judge Folsom; irritated judge Duffey by delaying requested docs; argued against judges on contradicting concepts defining legal opinion concerns; intended to make the Texas jury appear as ignorant on certain techical-terms regarding the patent. Now is trying to ignore the its results from its request to the USPTO on its appeal. I guess, the Appeal Court judges should put an end to this case --and recommend TREBLE DAMAGES. The appeal case is not that Echostar is not admitting infringement--because it is. However, willful infringement was decided by the by the people; or the Texas jury. Jude Folsom was a little prudent with Dish on not awarding triple damages to TiVo. Now is time for TiVo to request triple damages. Echostar will not be able to corrupt justice.
Last time I read an issue about Echostar entering the Appeal Court wth a gun pointing to its own head--I wonder how is the situation right now? when it will trigger?


----------



## shadowfax9x

TREND_WIRE said:


> However, willful infringement was decided by the by the people; or the Texas jury. Jude Folsom was a little prudent with Dish on not awarding triple damages to TiVo.


Hat's off to Judge Folsom for omitting the term "willful infringement" from the jury's verdict as it helps to keep his decision nice and tidy and lessens the odds to be overturned... The term "willful infringement" was a made up law by a federal judge long ago and isn't written into the Patent Act as cited by CAFC Judge Gajarsa in the Seagate writ of mandamus...

(Those judges in the E. Texas District know their stuff as the Seagate writ was decided en banc after the Tivo v. Echostar decision)


----------



## morac

This really isn't related to the trial, but Dish has started running commercials where they claim their DVR is "better than TiVo". Seems someone is a bit steamed with the current state of the trial.


----------



## timckelley

morac said:


> they claim their DVR is "better than TiVo".


I've not ever used the Dish DVR, but can this claim come close to being supportable? It seems I might vaguely remember somebody doing a taste test and listing all the reasons TiVo is better.


----------



## ZeoTiVo

timckelley said:


> I've not ever used the Dish DVR, but can this claim come close to being supportable? It seems I might vaguely remember somebody doing a taste test and listing all the reasons TiVo is better.


there is some new DVR from Dish that Cnet rated better than TiVo. Reading about the Dish DVR online it sure sounded better to me.

PS - this new DVR is not part of the infringement case


----------



## morac

timckelley said:


> I've not ever used the Dish DVR, but can this claim come close to being supportable? It seems I might vaguely remember somebody doing a taste test and listing all the reasons TiVo is better.


The only bullet point they give is that their DVR stores 300 hours of programming, but since the S3 also stores 300 hours that would make them equal if the recording time was the sole factor in the comparison. Maybe Echostar figures they're already being sued, so what more can TiVo do to them.


----------



## morac

ZeoTiVo said:


> there is some new DVR from Dish that Cnet rated better than TiVo. Reading about the Dish DVR online it sure sounded better to me.


I'm not sure if this is the one they were advertising since that DVR only has 200 hours of recording time and the commercial mentioned 300 hours. Even if it is, the commercial didn't say "rated better than TiVo" or "preferred over TiVo", they specifically said "better than TiVo". That's a very blanket statement which could get them into trouble.


----------



## DPF

They said "Better than TiVo according to Cnet" which gives them cover. Echostar can't be blamed for that, they're just taking advantage of Cnets (obviously misguided) conclusions.


----------



## MichaelK

yep-

I'm sure that's the one they are talking about.

I think in advertising land they can likely get away with "better than Tivo" based on the CNET review. 

Do you ever watch the BS commercials between cable, directv, and dish about HD? They are all full of lies and rarely do they get stopped. Every now and then someone gets an injunction to get the competition to shut up with the lies but I dont ever see anyone getting fined or sued for cash.


----------



## MichaelK

I love Tivo- but based upon what CNET says I'm not so sure you can say thay DISH is lighyears behind like their old DVR's. Just like the HR20 on Directv, DISH clearly has some features that some folks might consider a big deal compared to tivo. 30 second skip is apparently the normal behavior, they decoupled the OTA and the Sat tuners so you can record on all the tuners at once, some might like the ability to feed a second SD tv with one box, some might make an argument that the external storage solution that DISH has is better than Tivo.

Aside from decoupling the tuners there's not much there that I would like, and tivo has a bunch more that i dont think dish can deliver. But Tivo needs to pay attention to the innovations that others are making and keep the improvements coming.


----------



## ZeoTiVo

MichaelK said:


> some might make an argument that the external storage solution that DISH has is better than Tivo.


they article on cnet said you can move shows to the external storage specifically and then detach it and not loose any of the shows. That to me is a big plus I wish TiVo had.

You could put a 500 gig or more internal drive in a TiVo, setup recordings for movies Holiday specials and the like and then have specific external storage for just movies, Just holiday specials etc.. I would love to be able to do that on my TiVo.

My TiVo DVRs have always been rock steady, have all the core functionality I have wanted and keep increasing in value with new features but we all have our wish list of bells and whistles that would really polish up the TiVo. Hopefully Dish will fork over a nice bundle of cash to finance some R&D on a few bells and a whistle or two


----------



## DPF

Dish can do that because they don't have to stick to the OpenCable standards. TiVo can't allow the removable storage to survive if removed because the CableLabs will have a coronary and pull their cert.

In other words, that type feature being missing ain't TiVo's fault.

But anyway, back to the topic.


----------



## ZeoTiVo

DPF said:


> Dish can do that because they don't have to stick to the OpenCable standards. TiVo can't allow the removable storage to survive if removed because the CableLabs will have a coronary and pull their cert.
> 
> In other words, that type feature being missing ain't TiVo's fault.
> 
> But anyway, back to the topic.


good point, I had not considered the CableLabs angle in my UMF desire for a cool feature


----------



## kb7oeb

Dish usb storage is encrypted and can't be played outside your house, the only beef the studios probably have is you can stock pile content across many drives.


----------



## samo

VIP622 is better than TiVo. I also have HR20 from DTV and it is better than TiVo as well. But VIP622 is the best of all DVRs I ever used since Sep '99. It is rock solid, fast and pure pleassure to use. It has all the features I ever wanted plus some. I hope Dish loses to TiVo and has to replace my other 4 Dish DVRs with 622.


----------



## kmill14

samo said:


> VIP622 is better than TiVo. I also have HR20 from DTV and it is better than TiVo as well. But VIP622 is the best of all DVRs I ever used since Sep '99. It is rock solid, fast and pure pleassure to use. It has all the features I ever wanted plus some. I hope Dish loses to TiVo and has to replace my other 4 Dish DVRs with 622.


Better than which Tivo, and better at what?

I've never used a Dish product, but I have certainly used the HR20 and it is definitely not BETTER. Faster yes, but not better by far.

And for me, I like the fact that the stand-alone Tivo's open me up to a lot more content than a Dish or DTV DVR ever could.


----------



## hockeyinsd

As a long time Tivo user (on all tvs since 2002), I was very weary about making the switch to the Dish 622 DVR when I bought my HDTV back in May. It is pretty decent, not a tivo, but way better than I ever expected. It has some quirks that for that most part would only bug a tivo user, mainly the fact that when you are watching a recording, then drop to live tv, the buffer starts right then and there. For some reason it doesn't buffer live tv when you are watching a recording. Not a big deal, but considering I often leave live tv on one of the various discovery networks, often watch a recording, drop back to live tv and find the program that is live to be worth watching, but can't back up to the beginning due to no buffer before I dropped to live tv. Again, not a big deal to some, but I did this all them time with my tivo and it bugs!!! I also really, really, really miss the recently deleted folder, sucks when housemates occasionally forget and delete a show.

Anyways, not to highjack the thread, I really hope that as a result of this we get the tivo interface on Dish's DVRs. Doubt it is going to happen, but I would gladly pay another $5 a month on top of the DVR fee to have tivo!


----------



## morac

DPF said:


> Dish can do that because they don't have to stick to the OpenCable standards. TiVo can't allow the removable storage to survive if removed because the CableLabs will have a coronary and pull their cert.


I'm not sure how big a difference copying all your shows to an external drive is from sending all of them to a PC using TiVo ToGo. Sure the former is faster, but the end result is the same.

I think I'd rather have the drive increase the storage of the DVR like the TiVo does rather than restrict it to archiving shows anyway.


----------



## 1003

*Based on*
having two VIP622s that replaced TiVos I would agree that it is the equal of the TiVo HR10-250. While the comparison is not to the state of the art machines it is basically fair as dual tuner sat box to another. If TiVo and Comcast got thier act together tomorrow the VIP622 will be hard to beat feature for feature.

I personally don't use the external drive archive storage but I see it as less useful option compared to TiVo working far more naturally...


----------



## Johncv

hockeyinsd said:


> As a long time Tivo user (on all tvs since 2002), I was very weary about making the switch to the Dish 622 DVR when I bought my HDTV back in May. It is pretty decent, not a tivo, but way better than I ever expected. It has some quirks that for that most part would only bug a tivo user, mainly the fact that when you are watching a recording, then drop to live tv, the buffer starts right then and there. For some reason it doesn't buffer live tv when you are watching a recording. Not a big deal, but considering I often leave live tv on one of the various discovery networks, often watch a recording, drop back to live tv and find the program that is live to be worth watching, but can't back up to the beginning due to no buffer before I dropped to live tv. Again, not a big deal to some, but I did this all them time with my tivo and it bugs!!! I also really, really, really miss the recently deleted folder, sucks when housemates occasionally forget and delete a show.
> 
> Anyways, not to highjack the thread, I really hope that as a result of this we get the tivo interface on Dish's DVRs. Doubt it is going to happen, but I would gladly pay another $5 a month on top of the DVR fee to have tivo!


This is not a bug, the reason what you describe is part of TiVos Time warp patent.


----------



## shadowfax9x

Opinion issued today by the CAFC in Hyperphase Technologies v. Google regarding the Doctrine of Equivalents...

_"An equivalent must perform substantially the same function in substantially the same way to obtain the same result."_


----------



## Curtis

Johncv said:


> This is not a bug, the reason what you describe is part of TiVos Time warp patent.


TiVo's patent doesn't distinguish between various types of recordings. It isn't necessary. "Live" TV is as much a recording as anything shown in NOW PLAYING. Trick play (watching one thing while recording another) of live TV is the essence of TiVo's patent.


----------



## ZeoTiVo

Curtis said:


> . Trick play (watching one thing while recording another)


Trick play refers to the ability to RW, Pause FF the recording.
Watching one thing while recording another is not trick play


----------



## Hew

I got this from the yahoo message board:
"Today the US Court of Appeals for the Federal Circuit handed down a decision in HYPERPHRASE TECHNOLOGIES, LLC, ET AL. v. GOOGLE, INC.
The oral arguments in that case were held on Oct 3rd - 1 day before the argument in the Tivo case.

It was a complicated patent case in which the Court reversed in part and wrote a lengthy opinion.

Can the Tivo decision be far behind! "

Can this mean that TiVo vs. Echostar is up next? Or does the court system not do things in order. Thanks


----------



## BlackBetty

Hew said:


> I got this from the yahoo message board:
> "Today the US Court of Appeals for the Federal Circuit handed down a decision in HYPERPHRASE TECHNOLOGIES, LLC, ET AL. v. GOOGLE, INC.
> The oral arguments in that case were held on Oct 3rd - 1 day before the argument in the Tivo case.
> 
> It was a complicated patent case in which the Court reversed in part and wrote a lengthy opinion.
> 
> Can the Tivo decision be far behind! "
> 
> Can this mean that TiVo vs. Echostar is up next? Or does the court system not do things in order. Thanks


+1


----------



## TREND_WIRE

I think the US Court of Appeals, is just giving enough time for Echostar to settle with TiVo. We, we would be seeing something like a;" RIMM and Blackberry ."


----------



## Greg Bimson

Then you don't know how Echostar/Dish Network operates. They'll fight until they've convincingly won, or convincingly lost their pants. 

There will be no settlement until Echostar has its back against a wall.


----------



## morac

Greg Bimson said:


> There will be no settlement until Echostar has its back against a wall.


Trying to settle after you've lost usually doesn't work very well.


----------



## ChuckyBox

Hew said:


> Can this mean that TiVo vs. Echostar is up next? Or does the court system not do things in order. Thanks


They sort of do things in order, but it doesn't mean much in this case. The court is divided into panels of judges who work on the various cases. The Google case had Judges Michel, Lourie, and Gajarsa working on it, while the TiVo/Echostar case has Judges Bryson, Plager, and Keeley (Keeley being a visiting judge). So they are working on completely different sets of cases, despite them all being heard at about the same time.

In addition, I think the TiVo case is considerably more complicated than the Google case, which was a review of a summary judgment. I suspect more research and review will be required to resolve it.

That said, the court seems to be coming in with rulings about 3 months after oral arguments, so we could see something happen in January. (Just don't bet on it.)


----------



## acvthree

ChuckyBox!

Welcome back!


----------



## HDTiVo

morac said:


> Trying to settle after you've lost usually doesn't work very well.


Which country's legal system are you refering to?


----------



## morac

HDTiVo said:


> Which country's legal system are you refering to?


The U.S. A good example of this is the RIAA/MPAA. If they think you've infringed on their copyrights, they'll settle with you upfront for a few thousand dollars. If you reject the settlement offer, go to court and lose, well then you owe a few hundred thousand dollars. It's too late to settle once you've lost since the winning party has no incentive to settle at that point.


----------



## Greg Bimson

Well, then that brings up the "case in point". At one time, both Dish Network and DirecTV offered "distant network service", which was retransmitting network channels from different areas and selling them to many people, including those that were able to get at least a Grade B signal from those affiliates.

Both DirecTV and Dish Network were sued in the late 1990's. DirecTV, once the District Court issued their order for injunction, came to an agreement with the plaintiffs, and negotiated a stop to providing distant networks to those that do not qualify. This was done in early 1999, and was the catalyst for providing local channels over satellite.

After a remanding of the original case where Dish Network was found guilty, the case was retried and Dish Network was again found guilty. As a result of the verdict, Dish Network was to cut-off ineligible subscribers for Dish Network's willful infringement of the law. Dish Network felt that was too much to bear, so they appealed. The issue here is that the networks and their affiliate boards cross appealed, stating the law forces the judge to issue an injunction against Dish Network for use of the copyright license that allowed the use of distant network service.

The Court of Appeals decision handed down in August, 2006, mimicked the request of the networks. That is, the Court of Appeals sided with the networks and their affilate boards. The Court remanded the case back to District Court with the caveat that the judge *must* issue an injunction against Dish Network's use of the distant network copyright license. This meant Dish Network would be completely shut out of giving any subscribers a distant network feed.

Now Dish Network was in full fight-or-flight mode. They appealed to any court that would listen, as well as offered a settlement of $100 million to the networks and their affiliate boards to continue the use of the distant network service. Unfortunately for Dish Network, the Court of Appeals remanded the case back to the District Court with the instruction to issue the injunction against the use of the distant network license. The settlement could not be accepted by the judge because the injunction must be issued, and the distant network service on Dish Network was ceased because of the injunction.

Dish Network pushed the legal system too far. That may be happening again. Dish Network will get better terms from TiVo if they settle now, than if Dish Network waits for the Court of Appeals to issue a ruling in favor of TiVo. That is moot if Dish Network wins the appeal outright, but the chances of that are quite slim.


----------



## Johncv

What does TiVo active out of all this? Say the court come back next week and rules in TiVo favor and award all patent, monetary damages, court cost, and whatever else the court see fit to award. What happen then? Can TiVo turn around and demand that all DVR companies, cable and sat companies, to license TiVo software and service or else we sue you. What about Apple TV and other boxes that transmit TV shows and movies, can TiVo sue them? Look like to me that if TiVo prevail it just opens up a never ending legal mess that only lawyers will love.


----------



## dswallow

Johncv said:


> What does TiVo active out of all this? Say the court come back next week and rules in TiVo favor and award all patent, monetary damages, court cost, and whatever else the court see fit to award. What happen then? Can TiVo turn around and demand that all DVR companies, cable and sat companies, to license TiVo software and service or else we sue you. What about Apple TV and other boxes that transmit TV shows and movies, can TiVo sue them? Look like to me that if TiVo prevail it just opens up a never ending legal mess that only lawyers will love.


That's a very naive outlook because you're completely ignoring what TiVo has a patent on and just assuming it's on any sort of disk-based television recording system. The patents are very specific in how such operations are implemented.


----------



## morac

I don't know about other DVR manufactures, but DirectTV is safe from litigation because of deals they made with TiVo. Them buying ReplayTV and presumably all the associated patents doesn't hurt either.

Also TiVo's patents have nothing to do with streaming video over a network.


----------



## Johncv

morac said:


> I don't know about other DVR manufactures, but DirectTV is safe from litigation because of deals they made with TiVo. Them buying ReplayTV and presumably all the associated patents doesn't hurt either.
> 
> Also TiVo's patents have nothing to do with streaming video over a network.


You and Doug bring up good points, but that not answering the question, What does TiVo achieve out of all this?


----------



## dswallow

Johncv said:


> You and Doug bring up good points, but that not answering the question, What does TiVo achieve out of all this?


1) Stopping someone from stealing their patented technology.

2) Compensation for the duration of that theft.

3) Potentially a deal to license their technology or to bring their software to the former infringer's platform(s).

4) A much stronger bargaining position with others in that others can no longer count on getting away with stealing patented technology.


----------



## Greg Bimson

Right. There's nothing against anyone manufacturing their hardware part of their DVR's and writing the software side. It's just that a player in the DVR market must make sure they don't use any of TiVo's technology to do it. One of the bigger pieces was that it appears Dish Network uses the exact same hardware as TiVo in order to reduce the cost of a DVR. That is why TiVo patented the method for how their DVR's run, and it is one of the main reasons TiVo sued the largest DVR maker outside of TiVo: Echostar and Dish Network.


----------



## Hew

If TiVo wins the case and all is well with the patent, how long will they be able to recieve licensing fees? Does this patent expire at anypoint or does it last until someone else works around it. I remember hearing that patents on medicines expire after something like five years. Is it the same with technology? Does Thomas Edison (GE) still recieve licensing fees on light bulbs?


----------



## dswallow

Hew said:


> If TiVo wins the case and all is well with the patent, how long will they be able to recieve licensing fees? Does this patent expire at anypoint or does it last until someone else works around it. I remember hearing that patents on medicines expire after something like five years. Is it the same with technology? Does Thomas Edison (GE) still recieve licensing fees on light bulbs?


http://sec.edgar-online.com/2005/04/15/0001193125-05-077754/Section2.asp

U.S. patent 6,233,389, entitled Multimedia Time Warping System, originally filed on July 30, 1998, which describes many of the key inventions associated with the TiVo-enabled DVR software and hardware design. We refer to this as the "TimeWarp" patent. Key inventions claimed in the patent include a method for recording one program while playing back another or watching a program as it is recording, often referred to as time-shifting the program; a method for efficient and low-cost processing and synchronizing of the various multimedia streams in a television signal such as video, audio, and closed-captioning, and a storage format that easily supports advanced TrickPlay capabilities. *The expiration date of the Time Warp patent is July 30, 2018.*


----------



## fasTLane

dswallow said:


> *The expiration date of the Time Warp patent is July 30, 2018.*


WOW


----------



## d_anders

fasTLane said:


> WOW


Standard Technical Patent length. Patents are good to have, but without having lawyers to enforce them, they're almost worthless.


----------



## BlackBetty

one of the sites I frequent that talks about a certain something we can't talk about here....Some of the guys on that site who seem to be very knowlegeable about law and how appeals work, they think that we may hear a decision sometime next week. They have been looking at the decisions that have come in and when oral arguements were heard. Based on where TiVo kind of falls in the que and the fact that there doesn't seem to be any backlog, they think a decision is coming very soon. 

My fingers are crossed.


----------



## peteypete

BlackBetty said:


> one of the sites I frequent that talks about a certain something we can't talk about here....Some of the guys on that site who seem to be very knowlegeable about law and how appeals work, they think that we may hear a decision sometime next week. They have been looking at the decisions that have come in and when oral arguements were heard. Based on where TiVo kind of falls in the que and the fact that there doesn't seem to be any backlog, they think a decision is coming very soon.
> 
> My fingers are crossed.


What site would that be? link pls


----------



## rbreding

Awww come on....you should know that Mr Feb 2004. DDB.


----------



## peteypete

rbreding said:


> Awww come on....you should know that Mr Feb 2004. DDB.


Spell it out for me!! Don't assume one's knowledge based on one's "age"


----------



## ZeoTiVo

peteypete said:


> Spell it out for me!! Don't assume one's knowledge based on one's "age"


please we just had a Bobneth ruin a good thread on new products from Echostar. he was a real _yahoo_


----------



## BlackBetty

ZeoTiVo said:


> please we just had a Bobneth ruin a good thread on new products from Echostar. he was a real _yahoo_


yahoo...thats like having a conversation with sloth from the Goonies.


----------



## ZeoTiVo

BlackBetty said:


> yahoo...thats like having a conversation with sloth from the Goonies.


heh, you just described the thread perfectly 
I wish the decision would come down so we can all move on


----------



## BlackBetty

ZeoTiVo said:


> heh, you just described the thread perfectly
> I wish the decision would come down so we can all move on


amen! I am watching closely every day. Its starting to consume me, which is not good.


----------



## mrfrancophile

For anyone who's interested, you can keep an eye on the Circuit Court's website for postings of the opinion when it comes down. Not sure when that will be, but it'll show up here:

http://www.cafc.uscourts.gov/dailylog.html


----------



## netsurfer

dswallow said:


> http://sec.edgar-online.com/2005/04/15/0001193125-05-077754/Section2.asp
> 
> We refer to this as the "TimeWarp" patent. Key inventions claimed in the patent include a method for recording one program while playing back another. The expiration date of the Time Warp patent is July 30, 2018.[/b]


That is so cool because a DVR without being able to time warp is pretty useless. Sounds like Tivo has this market locked up. Echostar is in big trouble I think.


----------



## Cabal

netsurfer said:


> That is so cool because a DVR without being able to time warp is pretty useless. Sounds like Tivo has this market locked up. Echostar is in big trouble I think.


Other than being an obvious patent, and therefore likely to be rejected upon review, sure.


----------



## dswallow

Cabal said:


> Other than being an obvious patent, and therefore likely to be rejected upon review, sure.


I sure wish people who were clueless about the actual patent that TiVo has and that Echostar infringed upon would not post in this thread as if they understood what they were talking about. It just confuses newbies even more.


----------



## netsurfer

Cabal said:


> Other than being an obvious patent, and therefore likely to be rejected upon review, sure.


What in the world are you talking about? Obvious patent?

Well, the Patent office already verified the patent upon review. What is more, they now say that their findings are unapealable.

http://www.gearlog.com/2007/11/tivos_timewarp_patent_upheld.php


----------



## netsurfer

Does any one know how many DVR's Echostar was originally ordered to shut down? Someone here posted it was about 2.8 million but I have not seen any confirmation.


----------



## netsurfer

juanian said:


> I'm not a fan of Dish or DirecTV, but is there a worry that the government might be drawn in and do something? Since Dish is the only real satellite competition to DirecTV, and if a payout of a "large enough amount" could cause Dish to fold, would Dish strike up some sympathy in the government to cause any payment to TiVo to be reduced? (Hey, I'm certainly not versed in anti-trust, but just a thought.)


Their balance sheet currently shows 2.80 BILLION in cash, to say nothing of their other assets. No chance of folding.


----------



## netsurfer

ZeoTiVo said:


> there is some new DVR from Dish that Cnet rated better than TiVo. Reading about the Dish DVR online it sure sounded better to me.
> 
> PS - this new DVR is not part of the infringement case


It only does over the air antenna. No cable TV or SAT. Where is the proof that it does not infringe? Post the information please.


----------



## Curtis

netsurfer said:


> It only does over the air antenna. No cable TV or SAT. Where is the proof that it does not infringe? Post the information please.


I think you may be confused as to the Dish DVR model that was rated. CNET does not rate models that aren't on the market yet. The OTA model is not on the market yet.


----------



## BlackBetty

dswallow said:


> I sure wish people who were clueless about the actual patent that TiVo has and that Echostar infringed upon would not post in this thread as if they understood what they were talking about. It just confuses newbies even more.


+1


----------



## netsurfer

dswallow said:


> I sure wish people who were clueless about the actual patent that TiVo has and that Echostar infringed upon would not post in this thread as if they understood what they were talking about. It just confuses newbies even more.


Let's just say there are people on this forum who wish Tivo less than well. They are waging war against Tivo. Paid?


----------



## Martin Tupper

netsurfer said:


> That is so cool because a DVR without being able to time warp is pretty useless. Sounds like Tivo has this market locked up. Echostar is in big trouble I think.


Bobneth netsurfer,

TiVo hasn't patented "time warp". It has patented one method of "time warp". There's more that one way to skin a cat.

But TiVo caught Echostar using their "time warp" method on the DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, and DP-942. Only _those _models and "all EchoStar DVRs that are not more than colorably different from any of these products" are affected by this lawsuit.

Are the newer Echostar DVR's more than colorably different? I have no idea.


----------



## GoHokies!

Martin Tupper said:


> Bobneth netsurfer,
> 
> TiVo hasn't patented "time warp". It has patented one method of "time warp". There's more that one way to skin a cat.
> 
> But TiVo caught Echostar using their "time warp" method on the DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, and DP-942. Only _those _models and "all EchoStar DVRs that are not more than colorably different from any of these products" are affected by this lawsuit.
> 
> Are the newer Echostar DVR's more than colorably different? I have no idea.


Please god, not this again.


----------



## RoyK

GoHokies! said:


> Please god, not this again.


+1

Don't feed the Troll. netsurfer has already ruined one thread with his moronic illogic.


----------



## ZeoTiVo

netsurfer said:


> It only does over the air antenna. No cable TV or SAT. Where is the proof that it does not infringe? Post the information please.


Well I am pretty sure you are Bobneth who was George Webster so I am not going to be part of you crudding up another thread


----------



## BlackBetty

can't someone ban this clown just on the multiple ID's infraction alone?


----------



## ZeoTiVo

BlackBetty said:


> can't someone ban this clown just on the multiple ID's infraction alone?


they most likleyl banned the George Webster and Bobneth ids. now they face the decision of just banning the netsurfer ID and see if he gets tired of coming back or else ban the IP address. They do not seem quick to ban by IP, there may be some other hassle involved in doing that they would rather avoid.

Hopefully people in this thread will keep on ignoring the troll like they have


----------



## RoyK

Probably for banning by IP to be effective they would have to ban a range of IPs or even an ISP since its likely that a user doesn't have a fixed IP. Of course that could result in innocent members being banned too.


----------



## old7

ZeoTiVo said:


> Well I am pretty sure you are Bobneth who was George Webster so I am not going to be part of you crudding up another thread


I was thinking the same thing this morning, that bobneth, George Webster and netsurfer were all one and the same.


----------



## netsurfer

Has anyone heard anything about the trial?


----------



## BlackBetty

netsurfer said:


> Has anyone heard anything about the trial?


what are you looking for?


----------



## Curtis

Injunction reinstated.

"The stay that was issued pending appeal will dissolve when this appeal becomes final."


----------



## Curtis

"In sum, because of a failure of proof of literal infringement, we reverse the 
judgment of infringement of the hardware claims with respect to all of the accused 
devices. We remand for any further proceedings that may be necessary with respect to 
those claims. We affirm the judgment of infringement of the software claims with 
respect to all of the accused devices. Because the damages calculation at trial was not 
predicated on the infringement of particular claims, and because we have upheld the 
jury&#8217;s verdict that all of the accused devices infringe the software claims, we affirm the 
damages award entered by the district court. 
The district court&#8217;s injunction was stayed during the course of these proceedings. 
The stay that was issued pending appeal will dissolve when this appeal becomes final. 
At that time, the district court can make a determination as to the additional damages, if 
any, that TiVo has sustained while the stay of the permanent injunction has been in 
effect. 
Each party shall bear its own costs for this appeal. 
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. "


----------



## MarkSFCA

Where is this from?


----------



## Curtis

MarkSFCA said:


> Where is this from?


http://www.cafc.uscourts.gov/dailylog.html


----------



## carroca

Specifically, http://www.cafc.uscourts.gov/opinions/06-1574.pdf


----------



## PaulS

If I read this correctly, the injunction will be re-instated when the appeal is completed. How far along in the process are we to having that happen ? 

So, is this "game, set, match", or just another step along the path ?


----------



## kmill14

Match is over. Tivo wins, and the stay gets lifted. Hardware claims can be re-tried, but for all intents and purposes, Dish's DVRs get back on the clock for shutdown. So they are now forced to settle with TiVo and a very high price tag.


----------



## fasTLane

http://www.bloomberg.com/apps/news?pid=20601087&sid=a0v3GRyy.KA0&refer=home


----------



## ZeoTiVo

there is still the time involved for the Supreme Court to turn down an appeal


----------



## GoHokies!

That's what I'm talking about!!! :up: :up: :up:

Looks like no more "Tivo is about to go under" threads for a while.


----------



## dswallow

GoHokies! said:


> Looks like no more "Tivo is about to go under" threads for a while.


Why not? Fact never had anything to do with them before, why should things change now?


----------



## ZeoTiVo

GoHokies! said:


> That's what I'm talking about!!! :up: :up: :up:
> 
> Looks like no more "Tivo is about to go under" threads for a while.


yep, even the Yahoo stock spammers are prasing TiVo and its position in the industry now. No more bad mouthing and short selling.


----------



## GoHokies!

dswallow said:


> Why not? Fact never had anything to do with them before, why should things change now?


Touché!


----------



## TiVo Steve

http://www.zatznotfunny.com/2008-01/breaking-news-tivo-v-echostar/


----------



## timckelley

Let us hope that Echostar is feeling a lot of PAIN right now.  I wonder what their lawyers have to say for themselves.

I'd be happier though if the cost of the appeal would be billed to Echostar.


----------



## CuriousMark

So what does this mean for TiVo going forward? Hardware claims were rejected meaning TiVo has to retry that part of it or just accept that infringing boxes could, in theory, be made non-infringing with a software download. Do you think Dish would play that game? If they did, would the new software lose functionality compared to what those (however many remain in the wild) DVRs do now? Given the hardware design of the infringing DVRs, is it even possible to write non-infringing software?

Software claims were affirmed, could it mean that many, many DVRs are now fair game for new infringement lawsuits?

It seems to me things could be confusing for some time to come. It will be very interesting to see Dish and TiVo press releases about this.

Here is to hoping that Dish hasn't got a prayer and this turns out to be grand slam for TiVo.

CuriousMark


----------



## carroca

TiVo Press Release:

http://news.moneycentral.msn.com/ticker/article.aspx?Feed=PR&Date=20080131&ID=8122760&Symbol=TIVO


----------



## Curtis

CuriousMark said:


> Hardware claims were rejected meaning TiVo has to retry that part of it or just accept that infringing boxes could, in theory, be made non-infringing with a software download. Do you think Dish would play that game? CuriousMark


They lost the appeal. The appeals court is reinstating the injunction. The injunction says that the hard drives must be disabled.


----------



## ZeoTiVo

CuriousMark said:


> So what does this mean for TiVo going forward? Hardware claims were rejected meaning TiVo has to retry that part of it or just accept that infringing boxes could, in theory, be made non-infringing with a software download. Do you think Dish would play that game? If they did, would the new software lose functionality compared to what those (however many remain in the wild) DVRs do now? Given the hardware design of the infringing DVRs, is it even possible to write non-infringing software?


well the hardware is basically a CPU, Tuner, memory, hard drive.
The broadcom chips are sold commercially so kind of hard to call them patented by TiVo and the hookup of all that is not very unique.

The software method of tagging the demuxed video and audio and thus being able to quickly manipulate the streams based on system or remote commands was the heart of making the hardware work.

No idea if someone could come up with a different software way on the same exact hardware, but you can get more powerful CPUs and better system resources and most likely use a different software design to the same effect.

supossedly E* was working on some new software to change the infringing DVRs without shutting them down. No idea in who makes the call on whether that is enough to satisfy the injunction without turning off the DVR part.


----------



## RoyK

CuriousMark said:


> ......Hardware claims were rejected meaning TiVo has to retry that part of it or just accept that infringing boxes could, in theory, be made non-infringing with a software download. Do you think Dish would play that game?


It could very likely be made non infringing with the right software.



CuriousMark said:


> If they did, would the new software lose functionality compared to what those (however many remain in the wild) DVRs do now? Given the hardware design of the infringing DVRs, is it even possible to write non-infringing software?


It may lose functionality, may gain some. Sure it's possible to write non-infringing software.



CuriousMark said:


> Software claims were affirmed, could it mean that many, many DVRs are now fair game for new infringement lawsuits?


Who knows?


CuriousMark said:


> It seems to me things could be confusing for some time to come. It will be very interesting to see Dish and TiVo press releases about this.


Sure will.


CuriousMark said:


> Here is to hoping that Dish hasn't got a prayer and this turns out to be grand slam for TiVo.
> 
> CuriousMark


We'll see.


----------



## CuriousMark

Curtis said:


> They lost the appeal. The appeals court is reinstating the injunction. The injunction says that the hard drives must be disabled.


No dispute of that whatsoever. My question is "then what".

Zeo has a good point, who would make such a call anyway? I presume that Dish would have to satisfy the judge that a software load was non-infringing to get the injunction lifted. In the meantime they would be shipping new DVRS as fast as they can to replace these. It would probably be cheaper for them to just ship all new DVRs. Hopefully that is so expensive that the real answer will be make a good deal with TiVo. TiVo can command top dollar now, hopefully replacing all the DVRs or shipping new software is even more expensive. Only money drives dish.


----------



## CuriousMark

RoyK,

Despite the quick answers, I think the questions are valid and could merit some discussion beyond just wait and see. I could be wrong there, but it doesn't hurt to be curious and try to sound out the many experts here.

CuriousMark


----------



## Curtis

Dish statement:



"We are pleased the Federal Circuit found for us on Tivo&#8217;s hardware claims, but are disappointed in the Federal Circuit&#8217;s decision on the software claims. The decision, however, will have no effect on our current or future customers because EchoStar&#8217;s engineers have developed and deployed &#8216;next-generation&#8217; DVR software to our customers&#8217; DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit&#8217;s ruling. 

All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network. 

We intend to appeal the Federal Circuit&#8217;s ruling affirming the $94 million jury verdict.&#8221;


----------



## bkdtv

Dish Network's response



> "We are pleased the Federal Circuit found for us on Tivos hardware claims, but are disappointed in the Federal Circuits decision on the software claims. The decision, however, will have no effect on our current or future customers because EchoStars engineers have developed and deployed next-generation DVR software to our customers DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuits ruling.
> 
> All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.
> 
> We intend to appeal the Federal Circuits ruling affirming the $94 million jury verdict.


----------



## timckelley

Curtis said:


> We intend to appeal the Federal Circuits ruling affirming the $94 million jury verdict.


What court can they appeal that to?


----------



## carroca

timckelley said:


> What court can they appeal that to?


The Supreme Court of the United States is the last level of the Justice System left.


----------



## timckelley

I take it then, that it's also the only level left that they can go to? That's who Dish in their statement is referring to about their intended appeal?


----------



## netsurfer

Curtis said:


> They lost the appeal. The appeals court is reinstating the injunction. The injunction says that the hard drives must be disabled.


Wow, a signal comes down from on high from the mighty DISH satellite and people everywhere find their DVR does not work. How cool is that for Tivo? Real cool.


----------



## timckelley

netsurfer said:


> Wow, a signal comes down from on high from the mighty DISH satellite and people everywhere find their DVR does not work. How cool is that for Tivo? Real cool.


But Dish just said that all their DVRs that are currently deployed and in people's houses are not infringing, hardware or software wise.


----------



## ZeoTiVo

timckelley said:


> But Dish just said that all their DVRs that are currently deployed and in people's houses are not infringing, hardware or software wise.


netsurfer is a stock spammer - he will ignore facts and just keep pushing the most negative aspect for Dish, best not to feed him replies


----------



## netsurfer

CuriousMark said:


> No dispute of that whatsoever. My question is "then what".
> 
> Zeo has a good point, who would make such a call anyway? I presume that Dish would have to satisfy the judge that a software load was non-infringing to get the injunction lifted. In the meantime they would be shipping new DVRS as fast as they can to replace these. It would probably be cheaper for them to just ship all new DVRs. Hopefully that is so expensive that the real answer will be make a good deal with TiVo. TiVo can command top dollar now, hopefully replacing all the DVRs or shipping new software is even more expensive. Only money drives dish.


DISH is infringing on the Tivo's time warp patent that allows for time shift viewing. A DVR's without that feature is worthless. Some here will tell you that there are ways to get around this issue. they are wrong. Echostar will either have to load Tivo software after paying Tivo the reward money plus money for a licensing agreement or shut down their DVR's forever.


----------



## rainwater

netsurfer said:


> DISH is infringing on the Tivo's time warp patent that allows for time shift viewing. A DVR's without that feature is worthless. Some here will tell you that there are ways to get around this issue. they are wrong. Echostar will either have to load Tivo software after paying Tivo the reward money plus money for a licensing agreement or shut down their DVR's forever.


This is simply untrue. Not all of Echostar/Dish's DVRs contained software that was found to be infringing. Any new DVRs not listed in the original finding would have to be proven to be infringing. They will not be shutdown by this ruling today.


----------



## netsurfer

Curtis said:


> Dish statement:
> 
> The decision, however, will have no effect on our current or future customers because EchoStars engineers have developed and deployed next-generation DVR software to our customers DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuits ruling.


What a bunch of Malarkey. If that was the case they would have announced it before now.

D* is a such a scum bag.


----------



## RoyK

CuriousMark said:


> RoyK,
> 
> Despite the quick answers, I think the questions are valid and could merit some discussion beyond just wait and see. I could be wrong there, but it doesn't hurt to be curious and try to sound out the many experts here.
> 
> CuriousMark


I wasn't trying to be flip with the wait and see comment. I've seen enough David vs Goliath lawsuits to know that Goliath usually comes out on top eventually - Biblical exception noted.

Whether or not that will happen, of course, remains to be seen. In any event its going to be interesting for sure.


----------



## netsurfer

timckelley said:


> But Dish just said that all their DVRs that are currently deployed and in people's houses are not infringing, hardware or software wise.


I do not buy it. The time warp patent calls for recording and viewing two different programs at the same time. If their new software does that then they are still in big trouble.


----------



## netsurfer

rainwater said:


> This is simply untrue. Not all of Echostar/Dish's DVRs contained software that was found to be infringing. Any new DVRs not listed in the original finding would have to be proven to be infringing. They will not be shutdown by this ruling today.


If this is going to the supreme court then the court is going to be really pissed off at Echostar for wasting its time. They might not even grant a Supreme court hearing.


----------



## CuriousMark

RoyK said:


> In any event its going to be interesting for sure.


Agreed!


----------



## carroca

timckelley said:


> I take it then, that it's also the only level left that they can go to? That's who Dish in their statement is referring to about their intended appeal?


That's the way it seems although the case was remanded to the lower court to deal with "any further proceedings that may be necessary with respect to those [hardware infringement] claims" so I guess Echostar could try to get the damages award reduced at the lower court because of this.

Also TiVo seems like they have the opportunity to re-argue the hardware infringement claim according to this portion of the appeal ruling:


> At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.


----------



## acvthree

The SC is very right leaning and business friendly. EchoStar is a large company that could give large donations to the RNC. This could still be decided against Tivo.


----------



## GoHokies!

netsurfer said:


> I do not buy it. The time warp patent calls for recording and viewing two different programs at the same time. If their new software does that then they are still in big trouble.


No, it doesn't.

Try thinking about it and read what has been posted. The patent contains very specific software and hardware configurations, not all of which are upheld.

We've tried to convince all of your various user identities of this, and have merely shown that you have no respect for the rules and no care for any facts that get in way of your attempts to spread misinformation.


----------



## shadowfax9x

Curtis said:


> Dish statement:
> 
> "We intend to appeal the Federal Circuits ruling affirming the $94 million jury verdict.


You just gotta love ol' Charlie... Stubborn as a mule 
to the very end... He had better plan to bring a lot 
more than the $94 million with him when he sets foot 
back into Judge Folsom's court...


----------



## RoyK

rainwater said:


> This is simply untrue. Not all of Echostar/Dish's DVRs contained software that was found to be infringing. Any new DVRs not listed in the original finding would have to be proven to be infringing. They will not be shutdown by this ruling today.


Actually I think, since the hardware was not (yet) found to be infringing but the software was, all Echostar has to do is show that the software that they have downloaded to the older boxes is not the same software that was found to be infringing. The onus would then be on TiVo to prove that the new software also  infringes.

The onus of proof is on the patent owner.


----------



## timckelley

Also, didn't the recent ruling say that TiVo might get awarded even more money due to damages incurred during the stay of the original injuction? Sounds like EchoStar may be out more than just $94 million.


----------



## Curtis

RoyK said:


> Actually I think, since the hardware was not (yet) found to be infringing but the software was, all Echostar has to do is show that the software that they have downloaded to the older boxes is not the same software that was found to be infringing. The onus would then be on TiVo to prove that the new software also infringes.
> 
> The onus of proof is on the patent owner.


The injunction does not allow any wiggle room. It says that the hard drives have to be disabled. Period.


----------



## Curtis

timckelley said:


> Also, didn't the recent ruling say that TiVo might get awarded even more money due to damages incurred during the stay of the original injuction? Sounds like EchoStar may be out more than just $94 million.


Yep. Ongoing damages plus interest. It's up to around $200 million.


----------



## carroca

timckelley said:


> Also, didn't the recent ruling say that TiVo might get awarded even more money due to damages incurred during the stay of the original injuction? Sounds like EchoStar may be out more than just $94 million.


Absolutely. The amount was increased from ~$70 million originally to ~$94 million partially because of interest accrual in the time that had passed since the claim was filed so there is now more interest to tack on to that $94 million.


----------



## GoHokies!

RoyK said:


> Actually I think, since the hardware was not (yet) found to be infringing but the software was, all Echostar has to do is show that the software that they have downloaded to the older boxes is not the same software that was found to be infringing. The onus would then be on TiVo to prove that the new software also infringes.
> 
> The onus of proof is on the patent owner.


In that case what would stop Dish from making a few minor changes, slapping on a new version number and ducking the injunction?

I would hope that the injunction has more teeth in it than that.


----------



## timckelley

So when Dish said "We intend to appeal the Federal Circuit&#8217;s ruling affirming the $94 million jury verdict.&#8221; in their response, it sounded rosier for them than it should be, but admittedly taking their statement literally, they're right and accurate. It was $94 million. At the time.


----------



## Curtis

GoHokies! said:


> In that case what would stop Dish from making a few minor changes, slapping on a new version number and ducking the injunction?
> 
> I would hope that the injunction has more teeth in it than that.


You can read the injunction here: http://www.zatznotfunny.com/2006-08/tivo-wins-permanent-injunction-against-echostar-and-cash/


----------



## classicX

Well, I'll let you know if my DVR stops working.


----------



## classicX

BTW - i figured bobneth would be all over this. Where is he? </coy>


----------



## RoyK

classicX said:


> BTW - i figured bobneth would be all over this. Where is he? </coy>


his name d'jour is netsurfer


----------



## davecramer74

> DISH is infringing on the Tivo's time warp patent that allows for time shift viewing. A DVR's without that feature is worthless. Some here will tell you that there are ways to get around this issue. they are wrong. Echostar will either have to load Tivo software after paying Tivo the reward money plus money for a licensing agreement or shut down their DVR's forever.


what are you talking about? Worst case scenario is dish will have to license technology from tivo. They are paying back royalties and may have to pay future licensing fees. They arent going to get shutdown or have to load tivo software gui. if tivo was smart, they'd try to strike a deal with dish like they have with comcast and directv and make some money.


----------



## GoHokies!

Curtis said:


> You can read the injunction here: http://www.zatznotfunny.com/2006-08/tivo-wins-permanent-injunction-against-echostar-and-cash/


Thanks!

So, they way my non-legal mind reads this, the "infringing units" are referred to by model number. Since the model number is (presumably) tied to hardware, these DVRs are toast.

Now, what would stop Dish from releasing a DP-501 with the exact same hardware, different software and calling it the DP-501a? Voila! No longer an "infringing unit"?


----------



## timckelley

GoHokies! said:


> Thanks!
> 
> So, they way my non-legal mind reads this, the "infringing units" are referred to by model number. Since the model number is (presumably) tied to hardware, these DVRs are toast.
> 
> Now, what would stop Dish from releasing a DP-501 with the exact same hardware, different software and calling it the DP-501a? Voila! No longer an "infringing unit"?


Then they'd still have to recall all the old DVR units and replace them, which sounds expensive to me. 

But Dish seems to be ignoring all this in their response. They said the software is not infringing because they already changed and deployed a new version of it to everybody. They go on to say the hardware was found not to infringe, and they seem to conclude by implying they don't have to do diddly. Your interpretation makes their lawyers sound like liars.


----------



## classicX

GoHokies! said:


> Thanks!
> 
> So, they way my non-legal mind reads this, the "infringing units" are referred to by model number. Since the model number is (presumably) tied to hardware, these DVRs are toast.
> 
> Now, what would stop Dish from releasing a DP-501 with the exact same hardware, different software and calling it the DP-501a? Voila! No longer an "infringing unit"?


Because it's expensive.

It's in their best interested to either work with TiVo or workaround TiVo's patents. Otherwise, they just keep getting sued.


----------



## hddude55

timckelley said:


> Then they'd still have to recall all the old DVR units and replace them, which sounds expensive to me.
> 
> But Dish seems to be ignoring all this in their response. They said the software is not infringing because they already changed and deployed a new version of it to everybody. They go on to say the hardware was found not to infringe, and they seem to conclude by implying they don't have to do diddly. Your interpretation makes their lawyers sound like liars.


 Not liars, but definitely spin merchants. What would you expect their lawyers to say, "We give up!"? Echostar has gone this far and won't give up as long as they think they can somehow prevail. But this is a huge legal victory for TiVo, no matter who is spinning it, and Echostar's legal options are drying up.


----------



## SCSIRAID

Gee... I wonder if Dish DVR's will be turned off by Sunday afternoon..... Im sure the helpdesk phone would be ringing off the hook!!! How come I cant record the Super Bowl!!!!!


----------



## carroca

It seems to me that Echostar's response was mostly directed to their customers to ease the fears that their DVR is suddenly going to stop working. I have a feeling they will try to get a new stay on the injunction (at least on the DVR shutoff portion) while their new software is being verified for non-infringement (which you would have to assume is required - can the courts just trust their statement without technical investigation?).


----------



## morac

Considering the number of cases the Supreme Court gets a year versus the number they actually hear, the chance that the SC actually even chooses to hear Dish Network's appeal is slim. 

So what happens now? Does Dish have to pay TiVo right now and then file the appeal or can they file the appeal in order to postpone the judgement until the SC ignores the appeal (which can take a long time).


----------



## ZeoTiVo

GoHokies! said:


> In that case what would stop Dish from making a few minor changes, slapping on a new version number and ducking the injunction?
> 
> I would hope that the injunction has more teeth in it than that.


That was my reason for asking who gets to make the call if Dish claims new software makes them non-infringing and they wont turn them off.

also I think the Circuit Court may well have been trying to protect consumers from loosing their DVRs by overturning the hardware infringement but being fair to TiVo by keeping the software infringement that still allows the injunction unless DISH takes some action

of course it may be Like Curtis points out and DISH has no wiggle room on the injunction. We need some legal advice here in the thread that will speak to the detail of how the injunction is enforced or not.


----------



## fallingwater

CuriousMark said:


> So what does this mean for TiVo going forward? Hardware claims were rejected meaning TiVo has to retry that part of it or just accept that infringing boxes could, in theory, be made non-infringing with a software download. Do you think Dish would play that game? If they did, would the new software lose functionality compared to what those (however many remain in the wild) DVRs do now? Given the hardware design of the infringing DVRs, is it even possible to write non-infringing software?
> 
> Software claims were affirmed, could it mean that many, many DVRs are now fair game for new infringement lawsuits?
> 
> It seems to me things could be confusing for some time to come. It will be very interesting to see Dish and TiVo press releases about this.
> 
> Here is to hoping that Dish hasn't got a prayer and this turns out to be grand slam for TiVo.
> 
> CuriousMark


Nobody really knows how all of this will ultimately turn out, but it's a lot of fun to speculate.

I disagree with you regarding the best outcome.

It's good for TiVo's customers if TiVo has credible competition. TiVo is influenced far more by what its competition offers than by innumerable complaints on these Forums. If E* as a well-off TiVo competitor had to pay licensing fees so much the better!

Dish/E* has been a major DVR player from the beginning. TiVo offers many extra features but E* DVR's are good. I'm impressed with the method E* uses to offer external HDD storage and was disappointed that DirecTV and not E* ended up with ReplayTV's s/w.

E*'s announced TR-50 would be only standalone DVR besides TiVo, if produced. If the TR-50 has an NTSC as well as ATSC tuner it would be possible, as it still is from S3 TiVo's, to manually record from external standard-def sources even in this highly controlled digital era.

Every other DVR currently available (possibly excepting small players like Moxi?) is tied to a single cable or satellite provider (except satellite DVR's which offer ATSC OTA tuners as workarounds for satellite's technical limitations but not the ability to manually record from external standard-def sources).


----------



## Ingersoll

> Last, and perhaps most troubling for Dish, the company faces the very real possibility that it will be barred from selling DVRs and forced to disable the functionality on devices already in customers' homes. That's because the appeals court affirmed a permanent injunction against their sale an operation and said that the stay against its enforcement will end once the appeal becomes final.


http://arstechnica.com/news.ars/pos...l-dish-networks-dvrs-could-be-turned-off.html


----------



## timckelley

That would be a nice outcome. 

Yes, as TiVo customers, maybe we should want viable competition, but the way their lawyers have acted, they deserve that outcome.


----------



## BobCamp1

Typically speaking (I'm not a lawyer, I just watch lawyers in these kinds of cases)...

E* will have the current injunction temporarily suspended again, as the appeals court changed the original verdict. The original injunction can be shown to be no longer applicable. A new injunction will probably be issued, but maybe not if the judge knows he is going to grant the suspension of the original one. But E* has to initiate this process, which they will do tomorrow.

When E* can demonstrate that the new software doesn't infringe, the injunction will be lifted. The injunction will be stayed while this determination is made. Perhaps E* will get a few chances to get it right, perhaps not. This depends on the particular judge. If they show no interest in getting it right, the judge will issue an injunction (probably to disable all DVR functionality but allow the box to work in non-DVR mode) which WILL go into effect, or now E* faces court fines.

This is all done through the original judge. He is the only one who has to be satisfied. He is the one in charge now.

In the meantime, E* could argue for a reduction in damages as Tivo was not "as damaged" as originally thought. Unless Tivo wants to go to court again for the hardware aspects, in which case the injunction will probably be suspended during the new trial. E* will probably retroactively get charged for the interest for whatever the final amount is going to be.

Before all this, the judge will try repeatedly to get the two sides to settle. The last thing anyone wants (including Tivo, believe or not), is to have the infringing boxes turn into door stops. That unfairly hurts the customer, and would give Tivo bad press.

As always, this particular case may vary....


----------



## Curtis

BobCamp1 said:


> The original injunction can be shown to be no longer applicable.


If that was true the appeals court would have said something. They didn't. They reinstated the original injunction unchanged. They also didn't talk about reduced damages. In fact, they mentioned that the district court may want to take a look at additional damages.


----------



## ZeoTiVo

Curtis said:


> If that was true the appeals court would have said something. They didn't. They reinstated the original injunction unchanged.


That was my take on the injunction as well.

Still no one can tell us when the appeal finalizes and DISH has to do something?
Can DISH dither around on its new code nad start some process involving that to stay the injunction?


----------



## RoyK

ZeoTiVo said:


> That was my take on the injunction as well.
> 
> Still no one can tell us when the appeal finalizes and DISH has to do something?
> Can DISH dither around on its new code nad start some process involving that to stay the injunction?


I'd bet they'll try to. The failure of the appeals court to uphold TiVo's claims on the hardware changes the ballgame. If the hardware doesn't infringe and the new software doesn't either (yet to be shown) then I would think that the combination doesn't infringe and there is no grounds to continue the (stayed) injunction.

Damages for past software infringement, however, will likely be upheld. - hardly a fatal blow for a $12 billion dollar company.


----------



## fasTLane

Seems Dish has a plateful.


----------



## Curtis

RoyK said:


> If the hardware doesn't infringe


We don't know yet. The appeals court remanded that part back to the district court.

"we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision."


----------



## netsurfer

classicX said:


> Well, I'll let you know if my DVR stops working.


Oh, so you are a thief too?


----------



## netsurfer

GoHokies! said:


> Thanks!
> 
> So, they way my non-legal mind reads this, the "infringing units" are referred to by model number. Since the model number is (presumably) tied to hardware, these DVRs are toast.
> 
> Now, what would stop Dish from releasing a DP-501 with the exact same hardware, different software and calling it the DP-501a? Voila! No longer an "infringing unit"?


Yeah, it just cannot time warp. You can have that DVR. I certainly do not want it and neither will anyone else. They will say, give me Tivo or give me death.


----------



## netsurfer

BobCamp1 said:


> Tivo was not "as damaged" as originally thought.
> 
> The last thing anyone wants (including Tivo, believe or not), is to have the infringing boxes turn into door stops. That unfairly hurts the customer, and would give Tivo bad press.


Today's ruling upholds the full penalty.

Believe me, Echostar illegally stole customers from Tivo. Tivo wants those boxes to be door stops so they can sell Tivo boxes. Believe me.


----------



## GoHokies!

RoyK said:


> I'd bet they'll try to. The failure of the appeals court to uphold TiVo's claims on the hardware changes the ballgame. If the hardware doesn't infringe and the new software doesn't either (yet to be shown) then I would think that the combination doesn't infringe and there is no grounds to continue the (stayed) injunction.
> 
> Damages for past software infringement, however, will likely be upheld. - hardly a fatal blow for a $12 billion dollar company.


Really we're almost back at square one again - Folsom's gotta look at the hardware in more detail, and we have some new software to look at.

The only thing is that Dish is $94 mil in the hole and counting. Like you said, not a big deal for a $12B company (but a hell of a boon for Tivo if they ever see it!).


----------



## RoyK

GoHokies! said:


> Really we're almost back at square one again - Folsom's gotta look at the hardware in more detail, and we have some new software to look at.
> 
> The only thing is that Dish is $94 mil in the hole and counting. Like you said, not a big deal for a $12B company (but a hell of a boon for Tivo if they ever see it!).


Yup. But I'd bet it will be a very long time before TiVo sees a cent of it.


----------



## goony

timckelley said:


> Let us hope that Echostar is feeling a lot of PAIN right now.  I wonder what their lawyers have to say for themselves.


They get paid (lotsa $$$) whether they lose or not, so I'd suspect they won't take it personally... when you have six or seven figures in the bank for a year or two of work, it can buy you lots of (Southern?) comfort.


----------



## goony

netsurfer said:


> Tivo wants those boxes to be door stops so they can sell Tivo boxes. Believe me.


And just what model of Tivo-branded box will the Dish customer be purchasing from Tivo to replace their now-dead dual-tuner SD and dual-tuner HD Dish receiver+DVRs? Tivo has all but abandoned the satellite market.

Another aspect: If you're used to an integrated receiver+DVR, any attempt to revert to a separate DVR + receiver is a downright icky proposition... and, if you want dual tuners it's pretty much impossible.


----------



## IHDB

RoyK said:


> Yup. But I'd bet it will be a very long time before TiVo sees a cent of it.


dang shame that.

dish needs to die a firey death.

oh, I beleive in you netsurfer! a real voice of reason in the wilderness.


----------



## 1003

netsurfer said:


> Today's ruling upholds the full penalty.
> 
> Believe me, Echostar illegally stole customers from Tivo. Tivo wants those boxes to be door stops so they can sell Tivo boxes. Believe me.


*Dish*
customers scattering to the winds of local cable companies or DirecTV where TiVo collects no bounty is not necessarily in TiVos best interest. Collecting royalties on boxes seems to be direction TiVo is going anyway...


----------



## rainwater

netsurfer said:


> Believe me, Echostar illegally stole customers from Tivo. Tivo wants those boxes to be door stops so they can sell Tivo boxes. Believe me.


Its hard to believe you when you have no clue what you are talking about. What is in TiVos best financial interest is to have a licensing agreement with Echostar to collect money for each infringing box and any future infringing boxes that use the patented technology. Echostar isn't getting out of the DVR business because of this ruling.


----------



## DCIFRTHS

rainwater said:


> ... What is in TiVos best financial interest is to have a licensing agreement with Echostar to collect money for each infringing box and any future infringing boxes that use the patented technology. ....


 :up:


----------



## netsurfer

Tivo records two shows while watching a third show. Until Tivo was invented, you would have needed three VCRs to accomplish the same thing, two for record, and one for playback. But forget about playing back while the show is still recording, a VCR cannot do it. Plus, you would have had the immense hassle of coordinating the start and stop recording times and always making sure there was enough tape left in the machine. But even with that setup, you could still not pause or rewind live TV.

When Tivo invented and patented the multimedia time warping system, the invention allowed the user to store selected television shows while the user is simultaneously watching another show. This time warping system also encompasses a circular video buffer, which makes it possible to rewind, fast forward, pause and slow motion live TV. All of the features in this paragraph created a new product category that did not exist before Tivo invented and patented it.

In short, no matter what E*says about their software not infringing, they are untruthful if their DVRs can playback and record at the same time and or if they can pause and rewind live TV.

That means a non infringing DVR would not have the capability of recording one or more shows while you were in the process of watching a recorded show. Also, a non-infringing DVR would not have the capability to pause or rewind live TV.

That kind of DVR is not worth having. You would always have to make sure that a program is not about to begin recording during the time you are watching a recorded program. Plus, rewinding live TV is something I would not want to be without.


----------



## netsurfer

goony said:


> And just what model of Tivo-branded box will the Dish customer be purchasing from Tivo to replace their now-dead dual-tuner SD and dual-tuner HD Dish receiver+DVRs? Tivo has all but abandoned the satellite market.


Tivo did not abandon the satellite market. DirecTV told Tivo to take a hike because they were going to offer their own brand of DVR. Getting back to putting a satellite tuner into a Tivo could be into production in a very short time. Probably less than one month. You know Tivo already has it designed because they knew they would win this law suit and they know they might have to sell Echostar customers up to four million boxes. (current users)


----------



## netsurfer

JJ said:


> *Dish*
> customers scattering to the winds of local cable companies or DirecTV where TiVo collects no bounty is not necessarily in TiVos best interest. Collecting royalties on boxes seems to be direction TiVo is going anyway...


Right now Tivo needs royalties to help it stay in business, thanks to so many Cable and satellite providers stealing the Tivo time warp patent, so currently, Tivo is willing to settle for crumbs. But that is about to change big time.

Once this law suit is a thing of the past, Tivo will be able to name their own terms with every Cable company in the country. Instead of being lucky to scrape $1 per month per box in royalty fees from just a few Cable companies like right now, Tivo will then garner more like $7 to $10 a month (current Tivo service price) from EVERY cable company that wants to offer a DVR. Somebody on this forum said there are 2,300 cable companies nationwide.

The way these things work is that when the Goliath (DISH) loses the law suit, the other companies who do not want a law suit line up to offer Tivo the royalties in exchange for not suing them. As things progress, with Tivo on solid legal ground, Tivo can demand higher royalties again and again.


----------



## GoHokies!

netsurfer said:


> When Tivo invented and patented the multimedia time warping system, the invention allowed the user to store selected television shows while the user is simultaneously watching another show. This time warping system also encompasses a circular video buffer, which makes it possible to rewind, fast forward, pause and slow motion live TV. All of the features in this paragraph created a new product category that did not exist before Tivo invented and patented it.
> 
> In short, no matter what E*says about their software not infringing, they are untruthful if their DVRs can playback and record at the same time and or if they can pause and rewind live TV.
> 
> That means a non infringing DVR would not have the capability of recording one or more shows while you were in the process of watching a recorded show. Also, a non-infringing DVR would not have the capability to pause or rewind live TV.
> 
> That kind of DVR is not worth having. You would always have to make sure that a program is not about to begin recording during the time you are watching a recorded program. Plus, rewinding live TV is something I would not want to be without.


Wrong wrong wrong wrong wrong wrong!!!!!!

I'm not sure how much more clear we can be *THIS IS NOT WHAT THE PATENT COVERS!!!!!* IF YOU ARE NOT WILLING TO DEAL IN ACTUAL FACTS, PLEASE LEAVE!!!!

_If the patent covers what you say it covers, why did the appeals court only affirm the software infringement and send the hardware claims back to Judge Folsom?_


----------



## RoyK

netsurfer said:


> .........
> The way these things work is that when the Goliath (DISH) loses the law suit, the other companies who do not want a law suit line up to offer Tivo the royalties in exchange for not suing them. As things progress, with Tivo on solid legal ground, Tivo can demand higher royalties again and again.


The way things work is likely going to be that Motorola and Scientific Atlanta, two even larger Goliaths, notice that TiVo's hardware patent didn't hold up and say "sue me" -- now armed with engineers and lawyers familiar with exactly what they need to know to defend against the suits.


----------



## dswallow

RoyK said:


> The way things work is likely going to be that Motorola and Scientific Atlanta, two even larger Goliaths, notice that TiVo's hardware patent didn't hold up and say "sue me" -- now armed with engineers and lawyers familiar with exactly what they need to know to defend against the suits.


What really needs to happen is for engineers at Motorola and Scientific Atlanta/Cisco to realize their user interface sucks the big one and that while TiVo's has room for improvement, is immensely better than what they're using now, and they should enter into agreements to utilize TiVo's expertise and technology to improve their own products.


----------



## ZeoTiVo

RoyK said:


> The way things work is likely going to be that Motorola and Scientific Atlanta, two even larger Goliaths, notice that TiVo's hardware patent didn't hold up and say "sue me" -- now armed with engineers and lawyers familiar with exactly what they need to know to defend against the suits.


TiVo wants to write software that works on Motorolla and SA boxes. TiVo would just as soon drop making the hardware themselves anyway, they have no manufacturing economies of scale and do not count that as a core competency. TiVo would rather design hardware and deliver software to use on their designs and other's designs.

Echosdtar/Dish was a good target since very few like their business practices anyway. TiVo will not be in any rush to sue anyone else.

ETA -Oh and I agree with Doug that Motorolla and SA DVRs would be vastly improved if they antered into agreements with TiVo on the software


----------



## netsurfer

GoHokies! said:


> Wrong wrong wrong wrong wrong wrong!!!!!!
> 
> I'm not sure how much more clear we can be *THIS IS NOT WHAT THE PATENT COVERS!!!!!* IF YOU ARE NOT WILLING TO DEAL IN ACTUAL FACTS, PLEASE LEAVE!!!!
> _If the patent covers what you say it covers, why did the appeals court only affirm the software infringement and send the hardware claims back to Judge Folsom?_


Wrong in your OPINION only. Tivo's patent was NEVER about the hardware because the hardware consists of the following: A TUNER - tuners have been around for a long time, well before Tivo corporation. The rest of the hardware is a motherboard, cpu, ram, video circuit and an MPEG encoder/decoder. Those are all things that any computer with a sound card has and Tivo did not patent the computer.

The software makes it possible to instruct the hardware to record two shows at the same time and playback another show at the same time, plus the circular buffer that allows pausing and rewinding of live TV.

The software can be likened to the way Windows XP makes things happen on your computer. Without an operating system any software you install will not work on an empty computer.

Tivo is just a glorified computer and Tivo corporation invented the functionality that makes it do what it does. THAT is the patent.

When will you ever get it through your head that it was always about the software and the features that the software made possible that never existed before, called time warping. That is after all, the patent in question here.

I do not appreciate that just because your opinion is different than mine that you think you have the right to ask me to leave. Perhaps it is I who should ask you to leave but I will not because I am a nice person and I understand that you have the right to post here too.


----------



## jlb

With the money TiVo is going to get from the award, and the increased subs as people leave Dish, they should reward us in the form of lower prices.


----------



## netsurfer

RoyK said:


> The way things work is likely going to be that Motorola and Scientific Atlanta, two even larger Goliaths, notice that TiVo's hardware patent didn't hold up and say "sue me" -- now armed with engineers and lawyers familiar with exactly what they need to know to defend against the suits.


But you forget that it is not about the hardware, it is about the software.

Without the software the hardware is just very dumb hardware and cannot do anything at all. A useless paperweight.

Tivo invented time warp features, put them into their software and then they patented them. Echostar copied and stole that patented intellectual property.

Tivo wins. No doubt about it. Patents are patents for a reason. To protect inventors from thieves.


----------



## netsurfer

dswallow said:


> What really needs to happen is for engineers at Motorola and Scientific Atlanta/Cisco to realize their user interface sucks the big one and that while TiVo's has room for improvement, is immensely better than what they're using now, and they should enter into agreements to utilize TiVo's expertise and technology to improve their own products.


Well said. I would still like to see all cable and satellite DVR's shut down so that Tivo will have all the market share on the product they invented. That way they will not have to share revenues with anyone.


----------



## ZeoTiVo

netsurfer said:


> But you forget that it is not about the hardware, it is about the software..


yet you have shouted that all DVRs infringe because they have the same hardware. Such a major flip-flop just shows again you will post any rubbish that is simply just a load of s...pam.


----------



## netsurfer

jlb said:


> With the money TiVo is going to get from the award, and the increased subs as people leave Dish, they should reward us in the form of lower prices.


Three year commitment = $300 = 8.33/month.

8.33 equals 30 less cigarette's per month, nasty habit anyway.

Eight less beers per month, you will lose some weight.

Less than two fast food meals

1/2 of a decent restaurant meal

Tivo needs to increase prices, that is if you want them to survive. Seeing that your signature says you love your Tivo HD, I would wager that you do want them to survive. No such thing as something for nothing.


----------



## netsurfer

ZeoTiVo said:


> yet you have shouted that all DVRs infringe because they have the same hardware


You have me confused with someone else. I did not say that. I have always maintained that the hardware is just made up of computer components.


----------



## ZeoTiVo

netsurfer said:


> You have me confused with someone else. I did not say that. I have always maintained that the hardware is just made up of a computer components.


no confusuion here that you are using multiple IDs such as bobneth and George Webster.


----------



## rainwater

Wow, I have never seen so much misinformation on one single page. Luckily, we are at a point where everyone here knows that netsurfer (and all his other aliases) is so full of it, only about 1&#37; of what he says is true.


----------



## carroca

It looks like TiVo made a counter-response to Echostar's claim of new non-infringing software:



> "EchoStar has made a series of statements over the years related to the infringement of the TiVo patents that turned out to be both false and misleading," the company said in a statement. "At this point it doesn't really matter what EchoStar says by way of further self-serving statements. It matters what the courts say - and the courts have spoken."


http://money.cnn.com/news/newsfeeds/articles/djf500/200801311612DOWJONESDJONLINE001027_FORTUNE5.htm


----------



## netsurfer

carroca said:


> It looks like TiVo made a counter-response to Echostar's claim of new non-infringing software:
> 
> http://money.cnn.com/news/newsfeeds/articles/djf500/200801311612DOWJONESDJONLINE001027_FORTUNE5.htm


I always knew that E* was not only a thief of patents but also a liar. Good find.


----------



## netsurfer

GoHokies! said:


> Wrong wrong wrong wrong wrong wrong!!!!!!
> 
> I'm not sure how much more clear we can be *THIS IS NOT WHAT THE PATENT COVERS!!!!!* IF YOU ARE NOT WILLING TO DEAL IN ACTUAL FACTS, PLEASE LEAVE!!!!
> 
> _If the patent covers what you say it covers, why did the appeals court only affirm the software infringement and send the hardware claims back to Judge Folsom?_


So why don't you tell me what you think the patent covers and why did the court issue an injunction saying that E* had to disable their DVR's? I await your explanation.


----------



## rainwater

netsurfer said:


> So why don't you tell me what you think the patent covers and why did the court issue an injunction saying that E* had to disable their DVR's? I await your explanation.


The patent covers storing broadcast programs while watching another and converting TV signals to MPEG, each having separate audio and video streams. The audio and video streams have to be stored in separate temporary buffers and when requested must be reassembled into a MPEG stream and sent to the decoder. It also covers specific trick play functionality. There are actually more specific details in the patent that you would know if you actual read it. In no way does this cover every DVR in existence. And there are certainly obvious workarounds.


----------



## carroca

More interesting tidbits:



> Experts predicted Dish would ask for a rehearing among the three-panel court as well as a "rehearing en banc" that would include a dozen or so judges.
> 
> Most times, experts say, such requests are denied, leaving Dish to appeal to the U.S. Supreme Court, if it chooses to go that route.





> Some who are close to the situation said that Dish must still prove its newest software does not infringe TiVo's patents if it wants to avoid having to disable millions of DVRs used by its customers.


http://www.hollywoodreporter.com/hr...ness/news/e3i87c4dcd1982d089b3bc7a0a7518d2716


----------



## netsurfer

You wrote:

"The patent covers storing broadcast programs while watching another"

Correct, the time warp patent. 

Much of your other words have to do with hardware and hardware is not what is at issue here. The court decision yesterday made that very clear.

Then you wrote:

"It also covers specific trick play functionality"

Correct, such as pause and rewinding live TV (this is also a form of time warping)

Then you wrote:

"There are actually more specific details in the patent that you would know if you actual read it"

I have read every single word of the entire 38 pages.

Then you wrote:

"In no way does this cover every DVR in existence"

Only the ones that can record and play back at the same time and pause and rewind live TV. THE reason for the injunction to shut down E* DVR's. Because they infringe on the time warp patent.

Then you wrote:

"And there are certainly obvious workarounds"

If they are so obvious then please explain them. Should be very easy for you since they are so obvious.


----------



## classicX

netsurfer said:


> As things progress, with Tivo on solid legal ground, Tivo can demand higher royalties again and again.


Then only the consumer loses, since you can be sure that cable / satellite companies won't eat that cost.

I'm not interested in pay $13 per DVR - that's why I switched from cable in the first place.


----------



## timckelley

carroca said:


> Some who are close to the situation said that Dish must still prove its newest software does not infringe TiVo's patents if it wants to avoid having to disable millions of DVRs used by its customers.


Oh, so the burden of proof is on Dish then? (on the new software). This is pleasing to hear.


----------



## timckelley

classicX said:


> Then only the consumer loses, since you can be sure that cable / satellite companies won't eat that cost.
> 
> I'm not interested in pay $13 per DVR - that's why I switched from cable in the first place.


I hope the cost would be passed to users of the cable DVRs that are incurring these royalties.


----------



## classicX

jlb said:


> With the money TiVo is going to get from the award, and the increased subs as people leave Dish, they should reward us in the form of lower prices.


You'd be hard pressed to find an argument from anyone but TiVo.

However, from TiVo's perspective, why lower prices at all when there isn't really any alternative anyway?


----------



## timckelley

Also, hasn't TiVo been consistently losing money (i.e. negative profit)? I guess they need the new revenue to finally have a positive profit.


----------



## rainwater

netsurfer said:


> "In no way does this cover every DVR in existence"
> 
> Only the ones that can record and play back at the same time and pause and rewind live TV. THE reason for the injunction to shut down E* DVR's. Because they infringe on the time warp patent.


Ok, I will not argue anymore since you can't comprehend that the time warp patent only covers simultaneous recording and watching tv when implemented in the specific method listed in the patent.


----------



## rainwater

netsurfer said:


> If they are so obvious then please explain them. Should be very easy for you since they are so obvious.


All that has to be done is to store the audio and video streams differently than listed in the patent. The method listed in the patent is a way to provide the ability to do live buffering on low end CPUs.


----------



## carroca

timckelley said:


> Oh, so the burden of proof is on Dish then? (on the new software). This is pleasing to hear.


Which really does make sense. They have been shown to have infringed on the patents so they should have to prove that their workaround does not infringe and not just be trusted based on their statement.


----------



## old7

bobneth/George Webster/netsurfer: you should really learn how to use quotes properly. Everyone else seems to have figured them out, it really isn't that difficult. Especially with your high IQ and all.



bobneth/George Webster/netsurfer said:


> You wrote:
> 
> "The patent covers storing broadcast programs while watching another"
> 
> Correct, the time warp patent.
> 
> Much of your other words have to do with hardware and hardware is not what is at issue here. The court decision yesterday made that very clear.


That is not quite what the court said. From yesterdays ruling:


> At several points, TiVo argues that even if this court were to overturn the jury's verdict of literal infringement, there would still be ample evidence of infringement under the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court's instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.


The court is overturning the jury's verdict of literal infringement, but TiVo is free to pursue in the district court on infringement by equivalents. Further this only applied to the "50X DVRs" and not the Broadcom DVRs.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> "It also covers specific trick play functionality"
> 
> Correct, such as pause and rewinding live TV (this is also a form of time warping)
> 
> Then you wrote:
> 
> "There are actually more specific details in the patent that you would know if you actual read it"
> 
> I have read every single word of the entire 38 pages.


You may have read it, but I have serious doubts that you understood it.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> "In no way does this cover every DVR in existence"
> 
> Only the ones that can record and play back at the same time and pause and rewind live TV. THE reason for the injunction to shut down E* DVR's. Because they infringe on the time warp patent.


No, there is a very specific implementation that must accompany these functions before they infringe on the patent.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> "And there are certainly obvious workarounds"
> 
> If they are so obvious then please explain them. Should be very easy for you since they are so obvious.


One obvious workaround would be to leave the audio and video stream intact and process it as one stream and not two.


----------



## rainwater

carroca said:


> Which really does make sense. They have been shown to have infringed on the patents so they should have to prove that their workaround does not infringe and not just be trusted based on their statement.


Of course, moving forward, it still will not affect the judgment that Echostar will have to pay TiVo for the patent violations.


----------



## classicX

netsurfer said:


> Well said. I would still like to see all cable and satellite DVR's shut down so that Tivo will have all the market share on the product they invented. That way they will not have to share revenues with anyone.


I think that's a shortsighted desire.

Given the choice between no DVR and spending money out of pocket to get TiVo, I think you'd be surprised at the number of people who would just give up on TV.

100% of nothing is still nothing - but if they make deals, they don't have to make hardware, and can focus on the software.

I for one, would like to see a "next generation" TiVo software that is a shift away from the look of their current interface. I think it's due for a face-lift.


----------



## old7

carroca said:


> Which really does make sense. They have been shown to have infringed on the patents so they should have to prove that their workaround does not infringe and not just be trusted based on their statement.


Yes, the burden of proof that they no longer infringe is entirely up to them. Now might a judge give them another stay to provide that proof, who knows. Personally, I think that they have drug this out long enough.


----------



## Curtis

old7 said:


> The court is overturning the jurys verdict of literal infringement, but TiVo is free to pursue in the district court on infringement by equivalents. Further this only applied to the "50X DVRs" and not the Broadcom DVRs.


Appeals court: "In sum, because of a failure of proof of literal infringement, we reverse the judgment of infringement of the hardware claims with respect to all of the accused devices. "


----------



## classicX

carroca said:


> It looks like TiVo made a counter-response to Echostar's claim of new non-infringing software:
> 
> http://money.cnn.com/news/newsfeeds/articles/djf500/200801311612DOWJONESDJONLINE001027_FORTUNE5.htm


Whoa, the language of TiVo's statement sounds eerily similar to some people around here . . .

Slightly childish, actually.


----------



## classicX

rainwater said:


> The patent covers storing broadcast programs while watching another and converting TV signals to MPEG, each having separate audio and video streams. The audio and video streams have to be stored in separate temporary buffers and when requested must be reassembled into a MPEG stream and sent to the decoder. It also covers specific trick play functionality. There are actually more specific details in the patent that you would know if you actual read it. In no way does this cover every DVR in existence. And there are certainly obvious workarounds.


Actually, the old Dish DVR must have been infringing in some other way, since the sat transmission is all digital, and doesn't require encoding when being sent to storage, being a bit-for-bit copy. It only requires decoding during playback.


----------



## old7

bobneth/George Webster/netsurfer said:


> Well said. I would still like to see all cable and satellite DVR's shut down so that Tivo will have all the market share on the product they invented. That way they will not have to share revenues with anyone.


A little short sighted on your part, first TiVo already has agreements with DirecTV and a couple cable providers and second there are ways to provide similar functionality without infringing on TiVo's patents.

You really don't understand patents and you continue to prove it every time you post.


----------



## netsurfer

classicX said:


> Then only the consumer loses, since you can be sure that cable / satellite companies won't eat that cost.
> 
> I'm not interested in pay $13 per DVR - that's why I switched from cable in the first place.


But you forget that you got an artificially cheap price on your DVR service because cable TV companies stole the concept from Tivo. The real price would have been higher if the cable companies had to invent their DVR's.

Instead they just illegally copied a patented concept. That is about to end.


----------



## old7

Curtis said:


> Appeals court: "In sum, because of a failure of proof of literal infringement, we reverse the judgment of infringement of the hardware claims with respect to all of the accused devices. "


I stand corrected, I misread another portion. 


> Inasmuch as the Broadcom DVRs do not satisfy the is separated limitation and the 50X DVRs do not satisfy the assembles limitation, we must reverse the portion of the judgment upholding the jurys verdict that EchoStars DVRs literally infringe the hardware claims.


I see where I made the mistake.


----------



## netsurfer

rainwater said:


> Ok, I will not argue anymore since you can't comprehend that the time warp patent only covers simultaneous recording and watching tv when implemented in the specific method listed in the patent.


It is not that I do not comprehend what you think to be true. The courts upheld that the software infringes and it is the software that makes the hardware do the recording and playback at the same time and the pause and rewind of live TV with the circular buffer. Since Tivo thought of those ideas first and patented them they own the rights to those ideas. Method has nothing to do with it.


----------



## old7

bobneth/George Webster/netsurfer said:


> But you forget that you got an artificially cheap price on your DVR service because cable TV companies stole the concept from Tivo. The real price would have been higher if the cable companies had to invent their DVR's.
> 
> Instead they just illegally copied a patented concept. That is about to end.


There you go again, you can not patent a concept.


----------



## classicX

netsurfer said:


> You wrote:
> 
> "The patent covers storing broadcast programs while watching another"
> 
> Correct, the time warp patent.
> 
> Much of your other words have to do with hardware and hardware is not what is at issue here. The court decision yesterday made that very clear.


The rest of what he wrote addressed encoding and decoding the stream, which is processed by software, albeit possibly on dedicated hardware.



netsurfer said:


> Then you wrote:
> 
> "It also covers specific trick play functionality"
> 
> Correct, such as pause and rewinding live TV (this is also a form of time warping)


Don't mince the language of "time warping" and actual functionality - just because pausing and rewinding live TV sounds like it should be "time warping," it may or may not have anything to do with the aforementioned specifics of the patent.



netsurfer said:


> Then you wrote:
> 
> "In no way does this cover every DVR in existence"
> 
> Only the ones that can record and play back at the same time and pause and rewind live TV. THE reason for the injunction to shut down E* DVR's. Because they infringe on the time warp patent.


Again, the functionality may be the same, but the implementation may be different. When I had SA DVRs, if you paused or rewound live TV, the screen would visibly flicker. This was because it would switch from the live stream to the buffer - sounds like a workaround to me.



netsurfer said:


> Then you wrote:
> 
> "And there are certainly obvious workarounds"
> 
> If they are so obvious then please explain them. Should be very easy for you since they are so obvious.


See above. Another workaround would be to conjoin the process of encoding video onto a single DSP (or vice versa). I admit, I haven't read the patent, but there is almost always another way to do the same thing.


----------



## old7

bobneth/George Webster/netsurfer said:


> It is not that I do not comprehend what you think to be true. The courts upheld that the software infringes and it is the software that makes the hardware do the recording and playback at the same time and the pause and rewind of live TV with the circular buffer. Since Tivo thought of those ideas first and patented them they own the rights to those ideas. Method has nothing to do with it.


Yet again you show just how little you know about patents, you can't patent ideas or concepts. Patents are ALL about methods.


----------



## classicX

timckelley said:


> I hope the cost would be passed to users of the cable DVRs that are incurring these royalties.


That's what I meant - if TiVo just raises royalty rates arbitrarily, the consumers paying for those services would eat the cost, not the service provider.


----------



## netsurfer

rainwater said:


> All that has to be done is to store the audio and video streams differently than listed in the patent. The method listed in the patent is a way to provide the ability to do live buffering on low end CPUs.


You are forgetting that yesterday's court decision does not claim the hardware infringes, just the software. The brains of the machine. Yet they still found in Tivo's favor.

Stop being hungup on the hardware. That is NOT at issue. What is at issue is the act of recording and playing back at the same time and pause and rewind for live TV. That is an idea that Tivo thought of and patented and it has nothing to do with hardware, only software. Let that sink in for a while.


----------



## Curtis

netsurfer said:


> It is not that I do not comprehend what you think to be true. The courts upheld that the software infringes and it is the software that makes the hardware do the recording and playback at the same time and the pause and rewind of live TV with the circular buffer. Since Tivo thought of those ideas first and patented them they own the rights to those ideas. Method has nothing to do with it.


Ideas cannot be patented. Only methods and processes can be patented.


----------



## BobCamp1

Tivo's not going to sue anyone else. The main purpose of this lawsuit was to get cozy with the cable companies. In exchange for Tivo not sueing them and agreeing to OCAP, the cable companies are developing an SDV box, getting Tivo's features on their boxes, ensuring CableCards are working as intended, and giving Tivo a roadmap of their desired features, plus maybe a little glimpse of what their competitors are up to. IPR is usually used to get your foot in the door during negotiations. 

Tivo went after E* because they was no business relationship, and E* didn't have any defending IPR of their own. They were easy targets. Who else could they go after?

D* and Tivo are infringing on each other's patents. When the current agreement expires in 2011, another one will have to be reached.

At first glance, Microsoft may have the workarounds in place. Even if they don't, Microsoft is out of Tivo's league. Microsoft has tons of defending IPR, which Tivo is probably infringing on, plus lots of lawyers.

MythTV: What's the point? No market share, and no money to go after.

They can't go after any hardware OEMs anymore.

Next stop: the judge goes back and figures out exactly which DVRs were infringing and if they are still infringing today, assuming that the hardware is not infringing for now. Then E* will probably want him to modify the damages. Or they come to a settlement where cash will trade hands, probably around 70-80&#37; of the judgement plus licensing fees (a bird in the hand is worth two in the bush).


----------



## old7

bobneth/George Webster/netsurfer said:


> You are forgetting that yesterday's court decision does not claim the hardware infringes, just the software. The brains of the machine. Yet they still found in Tivo's favor.
> 
> Stop being hungup on the hardware. That is NOT at issue. What is at issue is the act of recording and playing back at the same time and pause and rewind for live TV. That is an idea that Tivo thought of and patented and it has nothing to do with hardware, only software. Let that sink in for a while.


Obviously reading for comprehension is not your strong suit. You can not patent an idea. You can not patent an idea. You can not patent an idea. You can not patent an idea. You can not patent an idea.


----------



## rainwater

netsurfer said:


> You are forgetting that yesterday's court decision does not claim the hardware infringes, just the software. The brains of the machine. Yet they still found in Tivo's favor.


Huh? The method I am talking about has nothing do with the the hardware. You seem to think that how something is implemented has nothing to do with the patent. The implementation has everything to do with the patent. You can keep digging a deeper hole for yourself if you want.


----------



## netsurfer

old7 said:


> One obvious workaround would be to leave the audio and video stream intact and process it as one stream and not two.


It is not about the hardware. Read yesterday's decision. The software infringement enforces the full penalty.

When I hit the multi-quote button absolutely nothing happens. I do not know why. Some bug with the message board I would guess.


----------



## RoyK

I like the mousetrap analogy. Assume nobody had thought of or built a mousetrap and I thought of and patanted "A device to reduce the mouse population" comprising a spring, a tripper, and a piece of cheese - said device luring the mouse which trips the tripper causing a spring to flip a wire around and break said mouse's neck."

There is nothing to prevent you from thinking of and patenting "A device to reduce the mouse population" which senses the presence of a mouse using photoelectrics, dropping a box over said mouse and releasing poisonous gas to kill the mouse.


----------



## netsurfer

classicX said:


> Given the choice between no DVR and spending money out of pocket to get TiVo, I think you'd be surprised at the number of people who would just give up on TV


I doubt it would be much. Why? Because I know what it is like to be without a DVR. Spent a lot of time away from home. Watching commercials was incredibly painful after having had Tivo for many years. you have no idea how bloated with commercials shows are until you go a while without a DVR.

$299 for any consumer electronic box is very reasonable and when they find out it is High definition too, they will buy many.


----------



## mp11

old7 said:


> TiVo already has agreements with DirecTV and a couple cable providers
> 
> 
> 
> Sorry if I came in on the end here, but what agreements does Tivo have with Directv? I'm hopeing one day to have the S3 AND Directv.
Click to expand...


----------



## classicX

netsurfer said:


> But you forget that you got an artificially cheap price on your DVR service because cable TV companies stole the concept from Tivo. The real price would have been higher if the cable companies had to invent their DVR's.
> 
> Instead they just illegally copied a patented concept. That is about to end.


Firstly, since we don't really know how much it is costing TiVo et al to run the services, we have no basis by which to claim that the price is artificially low, or arbitrarily high.

Let's assume that my price is artificially low; it's still not due to the reasons you suggest. R&D costs are factored into the price of the hardware, not into the ongoing services. The price is artificially low because the company can afford to subsidize the hardware by upselling other services - Dish, Comcast, etc. don't _need_ to make money from the boxes; they get it on the back end.

While the cost for "already available" software is factored into the price of the hardware, TiVo's costs for running the service must include R&D costs for providing software improvements and future updates. You can thank Sarbanes-Oxley for that.

In other words, if TiVo were to provide free software updates for existing units, they could not realize revenue from the sale of those units until the updates were delivered. They get around this because they put that cost into the ongoing monthly revenue stream from subscriptions, rather than the price of the box.

This is why Apple was able to provide iPhone updates for free, yet had to charge for updates to the iPod Touch.

There are ways around it, but TiVo would have to address them before making significant changes to their monthly pricing structure (e.g. doing away with monthly subs altogether).


----------



## ZeoTiVo

why do you continue to feed the troll in a thread so useful it has gone 1500 replies?

the courts have decided this case and no matter how logically and completely you counter argue the troll he will just post more nonsense, it is just what trolls do.


----------



## RoyK

ZeoTiVo said:


> why do you continue to feed the troll in a thread so useful it has gone 1500 replies?
> 
> the courts have decided this case and no matter how logically and completely you counter argue the troll he will just post more nonsense, it is just what trolls do.


Good question. I guess it's just so damned difficult to let stupidity go unchallenged. I for one won't feed any more.

BTW, Didn't H. G. Wells "invent" Time Warp?


----------



## netsurfer

old7 said:


> TiVo already has agreements with DirecTV and a couple cable providers and second there are ways to provide similar functionality without infringing on TiVo's patents.
> 
> You really don't understand patents and you continue to prove it every time you post.


DirecTv has already said that they will likely go back to Tivo boxes in the future. The few cable companies like Comcast that have struck deals with Tivo, did so because they knew Echostar would lose. They are smarter than Echostar or just not thieves.

Second, although people here keep saying there are ways to workaround, not one single person has stated what can be done to the software to make it non infringing. Answer, disable simultaneous record and playback and pause and rewind of live TV. Or like the court ordered, disable the whole hard drive so all you would have is a tuner box.

If I was not correct then the decision yesterday would have favored Echostar. Its all about the software, NOT the hardware that is just a computer.


----------



## classicX

old7 said:


> One obvious workaround would be to leave the audio and video stream intact and process it as one stream and not two.





netsurfer said:


> It is not about the hardware. Read yesterday's decision. The software infringement enforces the full penalty.


I don't understand how old7's comment has anything to do with hardware - seems like software to me.


----------



## timckelley

It is indeed about the software, but theoretically, isn't it possible to write new, different, software that achieves similar functionality?


----------



## rainwater

netsurfer said:


> DirecTv has already said that they will likely go back to Tivo boxes in the future.


Just wanted to highlight another idiotic statement. From now own, I will just repost netsurfer's idiotic statements. This could turn into a fun game to highlight the stupidity of this user(s).


----------



## classicX

netsurfer said:


> I doubt it would be much. Why? Because I know what it is like to be without a DVR. Spent a lot of time away from home. Watching commercials was incredibly painful after having had Tivo for many years. you have no idea how bloated with commercials shows are until you go a while without a DVR.
> 
> $299 for any consumer electronic box is very reasonable and when they find out it is High definition too, they will buy many.


First of all, you must not been following the HD-DVD versus Blu-Ray battle much. $299 is expensive as heck to a majority of the population. $100 is the magic number.

I know what it's like to be without a DVR too. Actually, it was _most of my life_.

If you consider the importance of watching TV in your life, it may be very important. For others, not so much. If it were me, I would go through a withdrawal period where I'd feel like there was nothing to do. But then I'd find something else to do.

Probably something more healthy than sitting around watching TV.


----------



## netsurfer

old7 said:


> There you go again, you can not patent a concept.


Instead of just making a flat out statement, how about telling me why you would say such a thing?

If Thomas Edison was awarded a patent for the light bulb, are you telling me that is someone substituted aluminum for the filament instead of whatever it is actually made of, then people would have the right to manufacture light bulbs without paying Edison royalties. I do not think so.


----------



## classicX

netsurfer said:


> $299 for any consumer electronic box is very reasonable and when they find out it is High definition too, they will buy many.


Anyway, it's all relative. What you find reasonable, I find outrageous.

It would be more reasonable if you didn't have to pay monthly as well, which has always been TiVo's dilemma:

YOU: Try TiVo!
THEM: How much is it?
YOU: $300, plus monthly fees.
*THEM: Why do I have to pay monthly if I already paid for the TiVo?*

American society is a culture of ownership - if we don't own it, we are renting it. Which is generally fine, but outside of the cell phone industry, American's aren't accustomed to buying something and then having to pay monthly for it. It's one or the other.


----------



## rainwater

netsurfer said:


> Instead of just making a flat out statement, how about telling me why you would say such a thing?
> 
> If Thomas Edison was awarded a patent for the light bulb, are you telling me that is someone substituted aluminum for the filament instead of whatever it is actually made of, then people would have the right to manufacture light bulbs without paying Edison royalties. I do not think so.


Hahahahahaha.


----------



## Curtis

netsurfer said:


> Instead of just making a flat out statement, how about telling me why you would say such a thing?
> 
> If Thomas Edison was awarded a patent for the light bulb, are you telling me that is someone substituted aluminum for the filament instead of whatever it is actually made of, then people would have the right to manufacture light bulbs without paying Edison royalties. I do not think so.


 "A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."

"In the language of the statute, any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent, subject to the conditions and requirements of the law. The word process is defined by law as a process, act or method, and primarily includes industrial or technical processes. "

http://www.uspto.gov/web/offices/pac/doc/general/index.html#patent


----------



## classicX

netsurfer said:


> Instead of just making a flat out statement, how about telling me why you would say such a thing?


Because it the law.



netsurfer said:


> If Thomas Edison was awarded a patent for the light bulb, are you telling me that is someone substituted aluminum for the filament instead of whatever it is actually made of, then people would have the right to manufacture light bulbs without paying Edison royalties. I do not think so.


The answer is yes.

You know, there is such a thing as "reading with understanding," though it seems like the concept is lost on you.


----------



## fallingwater

classicX said:


> What you find reasonable, I find outrageous.
> 
> It would be more reasonable if you didn't have to pay monthly as well, which has always been TiVo's dilemma...


You don't have to pay monthly. But the cost of HDTiVo isn't $300. Although TiVo's current offer has strings attached for existing customers only, HDTiVo's with Lifetime Service are available on eBay for a bit over $700. Existing customers can shave a bit more off by dealing with TiVo direct after buying HDTiVo from, say, Amazon.

http://cgi.ebay.com/TiVo-HD-DVR-wit...yZ147873QQssPageNameZWDVWQQrdZ1QQcmdZViewItem


----------



## netsurfer

You wrote:

"The rest of what he wrote addressed encoding and decoding the stream, which is processed by software, albeit possibly on dedicated hardware"

As far as I know, software only instructs hardware what to do and when to do it. Software can not process anything.

Then you wrote:

''Don't mince the language of "time warping" and actual functionality - just because pausing and rewinding live TV sounds like it should be "time warping," it may or may not have anything to do with the aforementioned specifics of the patent" 

Believe me, rewinding live TV is time warping. What else could it be? It certainly is not live TV.

Then you wrote:

"Again, the functionality may be the same, but the implementation may be different. When I had SA DVRs, if you paused or rewound live TV, the screen would visibly flicker. This was because it would switch from the live stream to the buffer - sounds like a workaround to me"

The court said the infringement is about the software and the features it provides, NOT hardware related.

Then you wrote:

Another workaround would be to conjoin the process of encoding video onto a single DSP (or vice versa). I admit, I haven't read the patent, but there is almost always another way to do the same thing

The court said the infringement is about the software and the features it provides, NOT hardware related.


----------



## old7

bobneth/George Webster/netsurfer said:


> Instead of just making a flat out statement, how about telling me why you would say such a thing?


Because it is a fact. What can be patented.



bobneth/George Webster/netsurfer said:


> If Thomas Edison was awarded a patent for the light bulb, are you telling me that is someone substituted aluminum for the filament instead of whatever it is actually made of, then people would have the right to manufacture light bulbs without paying Edison royalties. I do not think so.


What you suggest may or may not infringe upon a specific patent for a light bulb, it would depend on the specifics in the patent and the specifics on the workaround.

There are many light bulbs other than a mono-filament-vacuum bulb. Lookup fluorescent and sodium bulbs as examples. Yet they all provide light.


----------



## timckelley

netsurfer said:


> Then you wrote:
> 
> "Again, the functionality may be the same, but the implementation may be different. When I had SA DVRs, if you paused or rewound live TV, the screen would visibly flicker. This was because it would switch from the live stream to the buffer - sounds like a workaround to me"
> 
> The court said the infringement is about the software and the features it provides, NOT hardware related.


Yes, it's about the software, but with different software = different implementation = reason for the flickering. Different software = no infringment because, as you say, the patent is all about the software.


----------



## Curtis

Wow. I wonder why no one ever patented the web browser. Or maybe tax software.


----------



## netsurfer

RoyK said:


> I like the mousetrap analogy. Assume nobody had thought of or built a mousetrap and I thought of and patanted "A device to reduce the mouse population" comprising a spring, a tripper, and a piece of cheese - said device luring the mouse which trips the tripper causing a spring to flip a wire around and break said mouse's neck."
> 
> There is nothing to prevent you from thinking of and patenting "A device to reduce the mouse population" which senses the presence of a mouse using photoelectrics, dropping a box over said mouse and releasing poisonous gas to kill the mouse.


Seems to me you are missing the point. You just gave two different ways to achieve the same end result. Here we are talking about specific features called time warping. The DVR either has those features or it does not. Therefore it infringes or it does not. I seriously doubt there is a way to write software code that can make E* software non infringing while still offering time warp features. The software world is a little different than the hardware world.


----------



## rainwater

netsurfer said:


> Seems to me you are missing the point. You just gave two different ways to achieve the same end result. Here we are talking about specific features called time warping. The DVR either has those features or it does not. Therefore it infringes or it does not. I seriously doubt there is a way to write software code that can make E* software non infringing while still offering time warp features. The software world is a little different than the hardware world.


Do you even read anything other than the nonsense you write? TiVo didn't patent all possible ways to implement time warping. They patented their implementation. Echostar infringed on their patent, but in no way does that mean every DVR that has time warp is infringing. You seriously need to stop posting if you can't even comprehend basic facts.


----------



## netsurfer

mp11 said:


> old7 said:
> 
> 
> 
> Sorry if I came in on the end here, but what agreements does Tivo have with Directv? I'm hoping one day to have the S3 AND Directv.
> 
> 
> 
> I wrote an e-mail to DirecTV informing them that I had alot of money invested in three DirecTivo's with expanded recording space. I warned them that with their switch over to their own brand of DVR that if they ever stopped supporting my DirecTivo's and made them into paper weights, that I would instantly become an ex-customer. They wrote back and said they will support it for many years to come. I assumed that meant they were paying Tivo royalties. Maybe I am wrong.
Click to expand...


----------



## old7

bobneth/George Webster/netsurfer said:


> You wrote:
> 
> "The rest of what he wrote addressed encoding and decoding the stream, which is processed by software, albeit possibly on dedicated hardware"
> 
> As far as I know, software only instructs hardware what to do and when to do it. Software can not process anything.


In this case the patent is very specific in regards to both hardware and software. Software can process. Software processes things everyday.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> ''Don't mince the language of "time warping" and actual functionality - just because pausing and rewinding live TV sounds like it should be "time warping," it may or may not have anything to do with the aforementioned specifics of the patent"
> 
> Believe me, rewinding live TV is time warping. What else could it be? It certainly is not live TV.


"Time warping" is just the name of one of TiVo's patents. Just because you can rewind live television does not mean that you are violating TiVo's patent.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> "Again, the functionality may be the same, but the implementation may be different. When I had SA DVRs, if you paused or rewound live TV, the screen would visibly flicker. This was because it would switch from the live stream to the buffer - sounds like a workaround to me"
> 
> The court said the infringement is about the software and the features it provides, NOT hardware related.


It is about the software.



bobneth/George Webster/netsurfer said:


> Then you wrote:
> 
> Another workaround would be to conjoin the process of encoding video onto a single DSP (or vice versa). I admit, I haven't read the patent, but there is almost always another way to do the same thing
> 
> The court said the infringement is about the software and the features it provides, NOT hardware related.


It is about the software, but TiVo still has the option of pursuing Echostar on hardware infringement under the doctrine of equivalents. The original verdict found Echostar infringing on literal infringement and this was over turned.

You still have a long way to go before you begin to understand even the basics about patents.


----------



## netsurfer

rainwater said:


> Just wanted to highlight another idiotic statement. From now own, I will just repost netsurfer's idiotic statements. This could turn into a fun game to highlight the stupidity of this user(s).


Here you go, now you can eat your words. There are many other stories like this one with more details. This is just the first one I could find within 10 seconds.

http://arstechnica.com/news.ars/pos...ogether-comcast-to-launch-tivo-in-august.html


----------



## ZeoTiVo

classicX said:


> You know, there is such a thing as "reading with understanding," though it seems like the concept is lost on you.


he is not trying to understand something here, he is trying to muck up yet another thread and you guys are feeding him a full course dinner.

is this what TCF is to be under the new owners?


----------



## old7

bobneth/George Webster/netsurfer said:


> I wrote an e-mail to DirecTV informing them that I had alot of money invested in three DirecTivo's with expanded recording space. I warned them that with their switch over to their own brand of DVR that if they ever stopped supporting my DirecTivo's and made them into paper weights, that I would instantly become an ex-customer. They wrote back and said they will support it for many years to come. I assumed that meant they were paying Tivo royalties. Maybe I am wrong.


Yes, TiVo and DirecTV did extent their relationship.



> ALVISO, Calif., April 12, 2006 /PRNewswire-FirstCall via COMTEX News Network/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television services for digital video recorders (DVR), and DIRECTV, Inc. (NYSE: DTV), the nation's leading digital television service provider, today announced a three-year extension to the TiVo-DIRECTV commercial agreement.
> 
> Existing DIRECTV TiVo subscribers will be able to continue to receive the award-winning TiVo(R) service, with TiVo providing ongoing maintenance and support. In addition, TiVo and DIRECTV agree not to assert patent rights against the other. The agreement also extends the advertising relationship between the two companies. DIRECTV will continue to service existing DIRECTV receivers with TiVo service. While specific financial terms of the agreement were not disclosed, the recurring monthly economics of the agreement are similar to the economics for DIRECTV receivers with TiVo service activated since 2003.
> 
> "We are pleased to have reached an agreement with DIRECTV that will allow us to continue to provide our service to the more than 2 million DIRECTV TiVo households," said TiVo CEO Tom Rogers. "As the pioneer in the DVR market, we have created a service that is highly valued by consumers because of our technology, the wide range of our unique features and the unparalleled ease of our user experience. This agreement reflects TiVo's popularity among DIRECTV subscribers and importantly respects the value of our intellectual property as well."
> 
> "By extending our agreement with TiVo, we are ensuring quality support for DIRECTV customers who already own a DIRECTV TiVo unit," said Romulo Pontual, DIRECTV's chief technology officer. "We are pleased to cooperate with TiVo in a way that will best serve DIRECTV and our DIRECTV TiVo customers."


----------



## netsurfer

classicX said:


> First of all, you must not been following the HD-DVD versus Blu-Ray battle much. $299 is expensive as heck to a majority of the population. $100 is the magic number


Just 10 years ago a high definition receiver was $1,400 WITHOUT a built in DVR. Lets get real please.


----------



## old7

netsurfer said:


> Just 10 years ago a high definition receiver was $1,400 WITHOUT a built in DVR. Lets get real please.


And he was talking about the general consumer TODAY. Did you have a point?


----------



## netsurfer

rainwater said:


> Hahahahahaha.


Now there was a brilliant and informative post.


----------



## old7

bobneth/George Webster/netsurfer said:


> Now there was a brilliant and informative post.


At least his wasn't full of lies.


----------



## gonzotek

> http://arstechnica.com/news.ars/pos...ogether-comcast-to-launch-tivo-in-august.html


This article does not contain a quote from the former or new owners of DTV indicating that they plan to distribute TiVo DVRs in the future. What it does contain is speculation from TiVo CEO Tom Rogers that, maybe, they(Liberty Media) _could_ have an interest in re-partnering with TiVo for a new deal. There *is no announced plan* for DirecTV to distribute _new_ TiVo-based DVRs, and Liberty Media has never publicly made any comments to that effect.


----------



## BobCamp1

Curtis said:


> Wow. I wonder why no one ever patented the web browser. Or maybe tax software.


Web browsers are patented. Tax software is patented, too.

But NOT the general concepts. Only the specific implementations. The goal in writing a patent is to make the claims as generic as possible so that it covers as many implementations as possible, but not so generic that it would get rejected. Also, you need to make it specific enough so that your invention is decidedly covered. Usually, you do BOTH -- you start off with the generic claims, and work your way down to your specific implementation. But you can ignore me -- I have only successfully written two patents.

MP3s are patented as well. By Alcetel-Lucent. http://arstechnica.com/news.ars/post/20070222-8910.html 
Is Tivo paying any licensing fees to them? Nope. AT&T claims to have patents above and beyond MPEG LA for MPEG4. Is Tivo paying licensing fees to them? Nope.

Tivo is a thief as well. Everybody is. You can't write any software anymore without infringing on something. That's why the EU doesn't currently enforce any software patents (though this is a hotly-contested issue).

Yawn. This lawsuit still has a long way to go. Wake me up when it's over....


----------



## rainwater

netsurfer said:


> Here you go, now you can eat your words. There are many other stories like this one with more details. This is just the first one I could find within 10 seconds.
> 
> http://arstechnica.com/news.ars/pos...ogether-comcast-to-launch-tivo-in-august.html


I'm not eating my own words. Everyone knows DirectTV updated some of its DirectTivos months ago and that fueled speculation that there was a new agreement. However, there has been no evidence TiVo is going to build another DirectTiVo. Anybody can write articles full of speculation, just like anybody can go on a forum and post hundreds of posts as multiple users fool of nonsense.


----------



## old7

bobneth/George Webster/netsurfer said:


> DirecTv has already said that they will likely go back to Tivo boxes in the future.


Please point out where DirecTV has said they are likely to return to TiVo boxes.

I have DirecTV and I love my 7 DirecTiVos (Sony SAT-T60s and Hughes HDVR2s and my 2 HD DirecTiVos (HR10-250s), but I don't put out much hope for a new joint DirecTV and TiVo box in the near future.


----------



## netsurfer

old7 said:


> Because it is a fact. What can be patented.


Your link says this.

'"In the language of the statute, any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent. The word process is defined by law as a process, act or method"

I say that time warping is a process. One that Tivo invented. Words can be tricky to interpret and that is why I trust what the courts have said over whatever is your agenda. You really do not want to lose that free Echostar DVR, right?


----------



## rainwater

netsurfer said:


> Your link says this.
> 
> '"In the language of the statute, any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent. The word process is defined by law as a process, act or method"
> 
> I say that time warping is a process. One that Tivo invented. Words can be tricky to interpret and that is why I trust what the courts have said over whatever is your agenda. You really do not want to lose that free Echostar DVR, right?


Wow, you can't even comprehend the English language.


----------



## old7

bobneth/George Webster/netsurfer said:


> Your link says this.
> 
> '"In the language of the statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent. The word "process" is defined by law as a process, act or method"
> 
> I say that time warping is a process. One that Tivo invented. Words can be tricky to interpret and that is why I trust what the courts have said over whatever is your agenda. You really do not want to lose that free Echostar DVR, right?


Wow, you couldn't be more wrong on so many things.

Time warping is the name for a patent and that patent is specific to a process.

You would have to understand what the courts have said to have an opinion on what they said. I take that back, it seems that you don't have to understand what they said to have an opinion, it would help if you understood, but it is only obvious that you don't understand.

I have never subscribed to Echostar. I do not own an Echostar DVR.

You should really stop the lies.


----------



## netsurfer

timckelley said:


> Yes, it's about the software, but with different software = different implementation = reason for the flickering. Different software = no infringment because, as you say, the patent is all about the software.


I do not think I can agree with that, here is why. Lets say that Windows XP had been thoroughly scrutinized by very careful experts. Lets say they accurately documented 5,000 things that it can do when asked to do everything it was designed to do. The explored every aspect of the operating system.

So lets say I design an operating system that does all of those 5,000 things but one line of code was different. I contend that if that was not infringement then Windows would have dozens of imatators trying to get a piece of that huge finacial pie. How big is that pie? Well, big enough to make Bill Gates and his co-inventor, Paul Allen, the second and fourth richest men in the world.

I think that if it was as simple as changing a few lines of code that Microsoft would have so many imitators that we all would have heard about every one of them. Yet, around the globe the Microsoft operating system is almost the only operating system used and goes unchallanged.


----------



## TexasAg

You can effectively draft patent claims to cover an "idea." Let's say I filed a patent for this in 1990:

1. A method for time-shift that includes:
(a) receiving, at a first time, data associated with a television show;
(b) storing the data;
(c) retrieving the stored data at a later second time; and
(d) presenting images defined by the retrieved data to a viewer.

This is a perfectly reasonable claim - it defines a "process", which is statutory subject matter (meaning I deserve a patent as long as nothing existed before that anticipates or renders obvious this method).

It also happens to cover practically every possible implementation of time warping. So what I have done is effectively patented the idea of time warping. You'd be hard-pressed to implement time warping in any manner without violating my patent.



rainwater said:


> Wow, you can't even comprehend the English language.





old7 said:


> You should really stop the lies.


It's nice to see the mature nature of the discussion today.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

bobneth/George Webster/netsurfer said:


> I do not think I can agree with that, here is why. Lets say that Windows XP had been thoroughly scrutinized by very careful experts. Lets say they accurately documented 5,000 things that it can do when asked to do everything it was designed to do. The explored every aspect of the operating system.
> 
> So lets say I design an operating system that does all of those 5,000 things but one line of code was different. I contend that if that was not infringement then Windows would have dozens of imatators trying to get a piece of that huge finacial pie. How big is that pie? Well, big enough to make Bill Gates and his co-inventor, Paul Allen, the second and fourth richest men in the world.
> 
> I think that if it was as simple as changing a few lines of code that Microsoft would have so many imitators that we all would have heard about every one of them. Yet, around the globe the Microsoft operating system is almost the only operating system used and goes unchallanged.


You are confusing copyright with patents. Don't get me wrong, Microsoft has lots of patents, but in the context that you just described you would be talking about copyrights not patents.


----------



## jlb

4 8 15 16 23 42


----------



## Curtis

Someone should have patented flying... or refrigeration.


----------



## ZeoTiVo

gonzotek said:


> This article does not contain a quote from the former or new owners of DTV indicating that they plan to distribute TiVo DVRs in the future. What it does contain is speculation from TiVo CEO Tom Rogers that, maybe, they(Liberty Media) _could_ have an interest in re-partnering with TiVo for a new deal. There *is no announced plan* for DirecTV to distribute _new_ TiVo-based DVRs, and Liberty Media has never publicly made any comments to that effect.


plus that article was from June 2007 and written before DuirectTV had bought the ReplayTV IP.

It also said Comcast TiVo was rolling out in August. So GW.B.N also links to articles that are full of nonsense.


----------



## TexasAg

BobCamp1 said:


> MP3s are patented as well. By Alcetel-Lucent. http://arstechnica.com/news.ars/post/20070222-8910.html
> Is Tivo paying any licensing fees to them? Nope. AT&T claims to have patents above and beyond MPEG LA for MPEG4. Is Tivo paying licensing fees to them? Nope.
> 
> Tivo is a thief as well. Everybody is. You can't write any software anymore without infringing on something. That's why the EU doesn't currently enforce any software patents (though this is a hotly-contested issue).


According to this site:

http://www.mp3licensing.com/licensees/index.asp

Tivo has licensed the MP3 technology. That means Tivo didn't steal it.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> According to this site:
> 
> http://www.mp3licensing.com/licensees/index.asp
> 
> Tivo has licensed the MP3 technology. That means Tivo didn't steal it.


and they charge for desktop plus to cover the license fee for the MPEG encoder/decoder it contains.


----------



## old7

TexasAg said:


> You can effectively draft patent claims to cover an "idea." Let's say I filed a patent for this in 1990:
> 
> 1. A method for time-shift that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.
> 
> This is a perfectly reasonable claim - it defines a "process", which is statutory subject matter (meaning I deserve a patent as long as nothing existed before that anticipates or renders obvious this method).
> 
> It also happens to cover practically every possible implementation of time warping. So what I have done is effectively patented the idea of time warping. You'd be hard-pressed to implement time warping in any manner without violating my patent.
> 
> It's nice to see the mature nature of the discussion today.


Here is some free legal advice from freeadvice.com

Intellectual Property - Patent Law - Patent Basics



> I have a great concept. Can I patent it?
> A patent cannot be obtained on a mere idea or suggestion.


I guess bobneth/George Webster/netsurfer isn't the only one that needs to brush up on patent law.


----------



## netsurfer

old7 said:


> In this case the patent is very specific in regards to both hardware and software. Software can process. Software processes things everyday.
> 
> "Time warping" is just the name of one of TiVo's patents. Just because you can rewind live television does not mean that you are violating TiVo's patent.
> 
> It is about the software, but TiVo still has the option of pursuing Echostar on hardware infringement under the doctrine of equivalents. The original verdict found Echostar infringing on literal infringement and this was over turned.


Software can instruct the CPU to add columns one though seven and total them in column eight, but the software cannot do the computations. That is the job of the number cruncher, the CPU.

I think you are wrong about time warping.

I do not care about the hardware infringement. Tivo already won and the original award stands.


----------



## TexasAg

old7 said:


> I guess bobneth/George Webster/netsurfer isn't the only one that needs to brush up on patent law.


I'll stack up my years of experience against yours any day.

So tell me, in your expert legal opinion, how is the method claim I provided above not a valid "process" claim? And how is it not patenting the idea of time-shifting? Can you provide an example of how you could implement time-shifting without violating that method claim? If not, then that claim effectively patents the idea of time-shifting.

For that matter, can you even tell me what section of the Code deals with patent law?
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

ZeoTiVo said:


> he is not trying to understand something here, he is trying to muck up yet another thread and you guys are feeding him a full course dinner.


No, I am discussing matters. It is called a conversation.


----------



## old7

TexasAg said:


> I'll stack up my years of experience against yours any day.
> 
> So tell me, in your expert legal opinion, how is the method claim I provided above not a valid "process" claim? And how is it not patenting the idea of time-shifting? Can you provide an example of how you could implement time-shifting without violating that method claim? If not, then that claim effectively patents the idea of time-shifting.


I am not a legal expert in any way shape or form and don't claim to be. How about some advice from someone that is, Gene Quinn, Patent Attorney, Moving from Idea to Patent:



> By now everyone has undoubtedly seen the late night television commercials, and the online ads offering to help you patent your invention idea. Despite what these advertisements say, you cannot patent or protect an idea. In fact, anyone that even suggests that you can protect an idea is someone you should stay away from. Unfortunately, there are a lot of scams at work in the invention market, so you need to be careful. If you are new to the invention field please visit our Inventors Workshop, which has essential reading for the new inventor.
> 
> In order to protect an idea it must mature into an invention first. What this means, in a nutshell, is that you need to be able to explain to others how to make and use the invention so that they could replicate the invention after simply reading your description of the invention in a patent application. You do not need to have a prototype, but if you do not have a prototype you will still need to be able to describe it with detail and provide sketches showing your inventive contribution. If you do not have the ability to illustrate your invention you can obtain patent drawings from a patent illustrator for quite cheap. In fact, having quality patent drawings is the single best and most economical way to broaden and expand any patent application.
> 
> If you are stuck at the idea stage of the invention process you are not ready to file a patent application, and also you do not want to run out and start telling people or submitting your idea to companies. Most companies do not accept the submission of ideas, because ideas are not legally protected and, as such, are free to be taken by others. If you do tell a company your idea and then later they develop the same idea this leads to people believing, sometimes rightly so, that their ideas may have been stolen. Most companies, however, have extensive research and development going on all the time, so it is just as likely that your idea overlapped with something they were already working on. For this reason, reputable companies will not accept idea submissions, but rather accept submissions only of inventions that have a patent application pending. Companies that will listen to your ideas alone (i.e., without a patent pending or issued) should not be trusted. There is no way to protect an idea absent a confidentiality agreement, and without such an agreement your ideas are legally free to be stolen...





TexasAg said:


> For that matter, can you even tell me what section of the Code deals with patent law?


The U.S. Patent Act is found in Title 35 of the US Code.


----------



## old7

TexasAg said:


> So tell me, in your expert legal opinion, how is the method claim I provided above not a valid "process" claim? And how is it not patenting the idea of time-shifting? Can you provide an example of how you could implement time-shifting without violating that method claim? If not, then that claim effectively patents the idea of time-shifting.


First your claim is over broad. Second, it doesn't do anything that a VCR doesn't do.

What you present doesn't pass that laugh test.


----------



## morac

TiVo should sue Richard O'Brien because Time Warp is in the Rocky Horror Show. 

Tivo's Time Warp patent for dummies:



Code:


Record:

                    /--> Video -> Time Tag Video -> Store on drive
Encode to MPEG2 ---- 
                    \--> Audio -> Time Tag Audio -> Store on drive


Playback:

Read Stored Video -> Find Time Tag --\
                                      --- Combine Video/Audio -> Decode MPEG
Read Stored Audio -> Find Time Tag --/

That's the gist of it. All you need to do to not infringe on the patent is to leave out one of the steps above or do them in some other order. For example if you split the video and audio, but don't tag it you don't infringe. If you tag the MPEG stream but don't split it, you don't infringe. In order to infringe you need to follow the above steps *exactly*.

Where's the ignore user option when you need it?


----------



## TexasAg

old7 said:


> I am not a legal expert in any way shape or form and don't claim to be. How about some advice from someone that is, Gene Quinn, Patent Attorney, Moving from Idea to Patent:


Gene's a good guy. And unfortunately for you, this is one of those areas where a little legal knowledge can hurt.

You are right in the sense that I could not file a patent claim that says:
1. A method for time-shifting.

However, all you need to do is look at my example above. That is a valid method claim. Assuming no one had done anything similar before 1990 (in my made-up example), I could have gotten a patent with that claim in it. I'd also be very rich right now.

That method claim would have covered practically every possible implementation of time-shifting. Do you agree with that? If you do, then you have to admit that I have effectively patented the idea of time-shifting. No one could implement time-shifting without infringing my patent.



old7 said:


> First your claim is over broad. Second, it doesn't do anything that a VCR doesn't do.
> 
> What you present doesn't pass that laugh test.


You are confusing the concepts of "anticipation" with "statutory subject matter." In my example, we are assuming that my example claim is valid over the prior art, meaning it is not anticipated. If you want, you can assume that I filed my patent claim in 1970 instead of 1990. The patent claim is still "statutory subject matter" - it is still a statutory method claim that claims a "process."
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> You can effectively draft patent claims to cover an "idea." Let's say I filed a patent for this in 1990:
> 
> 1. A method for time-shift that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.


1. Define time-shift.
2. A VCR received data associated with a television show
3. a VCR stored the data
3. Using a VCR the stored data could later be retrieved
4. A VCR presents the image of the data to the viewer

This is not a patent on anything. This is a group of ideas that accomplish that same thing a VCR did 20 years earlier.

Please, please show me one patent attorney that says you can patent an idea.


----------



## TexasAg

old7 said:


> 1. Define time-shift.
> 2. A VCR received data associated with a television show
> 3. a VCR stored the data
> 3. Using a VCR the stored data could later be retrieved
> 4. A VCR presents the image of the data to the viewer
> 
> This is not a patent on anything. This is a group of ideas that accomplish that same thing a VCR did 20 years earlier.


First, you can assume that I was smart and defined "time-shifting" somewhere in my application (and that I hadn't made a typo and said "time-shifting" instead of "time-shift" in my example claim). You should also know that the preable of claims (the part before "that includes" in my example) is often not used to limit patent claims. All I need to show is that you perform steps (a)-(d) in order to infringe my patent.

In fact, I'll make it easy. Let's change my claim to this:

1. A method that includes:
(a) receiving, at a first time, data associated with a television show;
(b) storing the data;
(c) retrieving the stored data at a later second time; and
(d) presenting images defined by the retrieved data to a viewer.

Now, answer my question above. Assume I filed this claim at a time when it is technically new and non-obvious. How could you implement time-shifting without infringing my claim?

If you cannot think of an example where you could implement time-shifting and not infringe, then I have successfully patented the idea of time-shifting.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> First, you can assume that I was smart and defined "time-shifting" somewhere in my application (and that I hadn't made a typo and said "time-shifting" instead of "time-shift" in my example claim). You should also know that the preable of claims (the part before "that includes" in my example) is often not used to limit patent claims. All I need to show is that you perform steps 1-4 in order to infringe my patent.
> 
> Now, answer my question above. If we assume I filed this claim in 1970 (or any other time when it is technically new and non-obvious), how could you implement time-shifting without infringing my claim?
> 
> If you cannot think of an example where you could implement time-shifting and not infringe, then I have successfully patented the idea of time-shifting.


Even if filed in 1970 this would likely be consider obvious, take a look at the audio recording, going to video is not that much of a jump.

When do you want to go back to, the 1870's? Back then you would have been required to file a working proto-type.


----------



## TexasAg

old7 said:


> Even if filed in 1970 this would likely be consider obvious, take a look at the audio recording, going to video is not that much of a jump.
> 
> When do you want to go back to, the 1870's? Back then you would have been required to file a working proto-type.


You are still looking at whether my claim is anticipated or rendered obvious by the prior art. That is not what we are talking about. I've already said you need to assume that my claim is new and not obvious.

Now I'll ask for the third time. If you assume my claim is technically new and not obvious, how can you implement time-shifting without violating my patent?

If you cannot come up with one example, then I have sucessfully patented the idea of time-shifting.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> You are still looking at whether my claim is anticipated or rendered obvious by the prior art. That is not what we are talking about. I've already said you need to assume that my invention is new and not obvious.
> 
> Now I'll ask for the third time. If you assume my claim is technically new and not obvious, how can you implement time-shifting without violating my patent?


You want me to assume too much.


----------



## ZeoTiVo

TexasAg said:


> If you cannot come up with one example, then I have sucessfully patented the idea of time-shifting.


so can we infer from all this that a VCR is infringing on TiVo patents or that TiVo is infringing on some VCR patent?


----------



## TexasAg

old7 said:


> You want me to assume too much.


Then you just don't want to answer my question because it proves my point.

If I can get a patent with a method claim that covers the very basic functions of time-shifting, I have effectively patented the idea of time-shifting. No one can practice time-shifting without infringing my patent.

You asked what patent attorneys say you can patent ideas. My answer is: the good ones, but only in private. If I patented my time-shifting claim, I would defend it by saying that I had patented all implementations of time-shifting that perform the 4 functions listed in my claim. As the patent owner, I would not have to show that there are other non-infringing implementations of time-shifting.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

TexasAg said:


> You can effectively draft patent claims to cover an "idea." Let's say I filed a patent for this in 1990:
> 
> 1. A method for time-shift that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.
> 
> This is a perfectly reasonable claim - it defines a "process", which is statutory subject matter (meaning I deserve a patent as long as nothing existed before that anticipates or renders obvious this method).
> 
> It also happens to cover practically every possible implementation of time warping. So what I have done is effectively patented the idea of time warping. You'd be hard-pressed to implement time warping in any manner without violating my patent.


That is pretty close to what I have been trying to convey but I think you probably explained it better than me.

In my 5 decades of living there have been quite a few times where a product emerged and then later I read about how it infringed on a patent. Reading the articles revealed that the owner of the patent only patented his idea but never a way to implement it. Why this would be in my mind if I had not read it more than once I cannot say. It is not really the kind of thing that we think about much, but I truly do believe that ideas are patentable without having a method. It just seems that some of the people who are on this board seem to have a vested interest in defeating Tivo.

They twist words around and hurl insults without going into specifics of why they think I am wrong. Anyway, suffice to say that Tivo does have enemies. On Wall Street today Tivo recieved a few down grades one day after winning the appeal. The down grades do not make sense but that is the way enemies play. They buy down grades from firms when they want to hurt the stock price.

Buying downgrades should of course be illegal but it is a tough thing to prove. Tivo's enemies do not play fair.


----------



## RoyK

ZeoTiVo said:


> so can we infer from all this that a VCR is infringing on TiVo patents or that TiVo is infringing on some VCR patent?


I think we can infer that we have another one


----------



## netsurfer

rainwater said:


> Wow, you can't even comprehend the English language.


I comprehend just fine. I also notice that one line insults do not argue your point very well.


----------



## rainwater

netsurfer said:


> On Wall Street today Tivo recieved a few down grades one day after winning the appeal. The down grades do not make sense but that is the way enemies play. They buy down grades from firms when they want to hurt the stock price.
> 
> Buying downgrades should of course be illegal but it is a tough thing to prove. Tivo's enemies do not play fair.


You should go back over to the Yahoo stock board. Stock talk is not allowed here.


----------



## old7

TexasAg said:


> First, you can assume that I was smart and defined "time-shifting" somewhere in my application (and that I hadn't made a typo and said "time-shifting" instead of "time-shift" in my example claim). You should also know that the preable of claims (the part before "that includes" in my example) is often not used to limit patent claims. All I need to show is that you perform steps (a)-(d) in order to infringe my patent.
> 
> In fact, I'll make it easy. Let's change my claim to this:
> 
> 1. A method that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.
> 
> Now, answer my question above. Assume I filed this claim at a time when it is technically new and non-obvious. How could you implement time-shifting without infringing my claim?
> 
> If you cannot think of an example where you could implement time-shifting and not infringe, then I have successfully patented the idea of time-shifting.


I'll even bite on your assumption:

1. A method that includes:
(a) receive, at a first time, data associated with a television show;
(b) present images associated with a television show;
(c) storing the data associated with a television show;
(d) retrieving the stored data at a later second time;
(e) display images associated with a television show.

My method presents the data live and records the data second. I have side-stepped your overly simplistic patent.


----------



## netsurfer

old7 said:


> You are confusing copyright with patents. Don't get me wrong, Microsoft has lots of patents, but in the context that you just described you would be talking about copyrights not patents.


Perhaps you are right, but it is still a protection mechanism to product the rightful intellectual property of the inventor or source. Can you see any problems with that statement?


----------



## old7

bobneth/George Webster/netsurfer said:


> That is pretty close to what I have been trying to convey but I think you probably explained it better than me.
> 
> In my 5 decades of living there have been quite a few times where a product emerged and then later I read about how it infringed on a patent. Reading the articles revealed that the owner of the patent only patented his idea but never a way to implement it. Why this would be in my mind if I had not read it more than once I cannot say. It is not really the kind of thing that we think about much, but I truly do believe that ideas are patentable without having a method. It just seems that some of the people who are on this board seem to have a vested interest in defeating Tivo.
> 
> They twist words around and hurl insults without going into specifics of why they think I am wrong. Anyway, suffice to say that Tivo does have enemies. On Wall Street today Tivo recieved a few down grades one day after winning the appeal. The down grades do not make sense but that is the way enemies play. They buy down grades from firms when they want to hurt the stock price.
> 
> Buying downgrades should of course be illegal but it is a tough thing to prove. Tivo's enemies do not play fair.


What you don't understand is that this is his overly simplistic view of TiVo's patent and not TiVo's actual patent. TexasAg understands this very well, you do not.


----------



## classicX

rainwater said:


> Wow, you can't even comprehend the English language.


<Samantha Carter on "netsurfer">

We're talking about _neutron star_ levels of density here.

</Samantha Carter>


----------



## Curtis

TexasAg said:


> You can effectively draft patent claims to cover an "idea." Let's say I filed a patent for this in 1990:
> 
> 1. A method for time-shift that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.


The patent would not be granted. It would fail the non-obvious test.


----------



## old7

netsurfer said:


> Perhaps you are right, but it is still a protection mechanism to product the rightful intellectual property of the inventor or source. Can you see any problems with that statement?


My point is that you don't understand enough about patent law to be arguing anything here.


----------



## TexasAg

old7 said:


> I'll even bite on your assumption:
> 
> 1. A method that includes:
> (a) receive, at a first time, data associated with a television show;
> (b) present images associated with a television show;
> (c) storing the data associated with a television show;
> (d) retrieving the stored data at a later second time;
> (e) display images associated with a television show.
> 
> My method presents the data live and records the data second. I have side-stepped your overly simplistic patent.


Nice try. If I was Henry Ford and got a patent claim for a vehicle that includes a frame, an engine, and a steering wheel, you could not avoid infringement by adding a windshield. Your vehicle would still have a frame, an engine, and a steering wheel.

In your example, you perform all 4 steps listed in my patent claim. You:
receive, at a first time, data associated with a television show; (both a steps)
store the data; (my step b, your step c)
retrieve the data at a later second time; (my step c, your step d); and
present images associated with the television show (my step d, your step e, and yes, "display" would be included in "present").

The fact that you included an extra step doesn't matter since, as a smart inventor, I paid for a good patent attorney. My patent claim covers anyone who does the 4 steps, regardless of whether you perform extra steps in addition to the 4 steps I claimed.

Here's the end result - you can effectively patent all possible implementations of an idea, meaning you have effectively patented the idea itself. You can view this as patenting only the implementations, which is fine, I have no problem with that. But when you've cut off everyone else from ever implementing your idea so that everyone would infringe your patent, I'll view it as patenting the idea (even if you don't want to admit it).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

TexasAg said:


> According to this site:
> 
> http://www.mp3licensing.com/licensees/index.asp
> 
> Tivo has licensed the MP3 technology. That means Tivo didn't steal it.


Damn, you are good at catching the liars in their lies.


----------



## netsurfer

"I have a great concept. Can I patent it?
A patent cannot be obtained on a mere idea or suggestion."\

But time warping is not just an idea, it is also a "process"


----------



## TexasAg

netsurfer said:


> Damn, you are good at catching the liars in their lies.


Just in case you hadn't noticed, I pinged a couple other folks on the less-than-mature discussion that seemed to be going on. I don't want to get involved in any "you're a liar" discussions.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> Nice try. If I was Henry Ford and got a patent claim for a vehicle that includes a frame, an engine, and a steering wheel, you could not avoid infringement by adding a windshield. Your vehicle would still have a frame, an engine, and a steering wheel.
> 
> In your example, you perform all 4 steps listed in my patent claim. You:
> receive, at a first time, data associated with a television show; (both a steps)
> store the data; (my step b, your step c)
> retrieve the data at a later second time; (my step c, your step d); and
> present images associated with the television show (my step d, your step e, and yes, "display" would be included in "present").
> 
> The fact that you included an extra step doesn't matter since, as a smart inventor, I paid for a good patent attorney. My patent claim covers anyone who does the 4 steps, regardless of whether you perform extra steps in addition to the 4 steps I claimed.
> 
> Here's the end result - you can effectively patent all possible implementations of an idea, meaning you have effectively patented the idea itself. You can view this as patenting only the implementations, which is fine, I have no problem with that. But when you've cut off everyone else from ever implementing your idea so that everyone would infringe your patent, I'll view it as patenting the idea (even if you don't want to admit it).


Please, I'll ask again, point out a patent attorney that claims you can patent an idea.


----------



## rainwater

netsurfer said:


> Damn, you are good at catching the liars in their lies.


There are actually two companies that hold patents for parts of the MP3 technology.


----------



## classicX

1) Patent a business method by which one applies for a patent.
2) Patent a business method by which one searches for and reviews existing patents
3) ???
4) PROFIT


----------



## old7

bobneth/George Webster/netsurfer said:


> "I have a great concept. Can I patent it?
> A patent cannot be obtained on a mere idea or suggestion."\
> 
> But time warping is not just an idea, it is also a "process"


Yes, and that process is clearly outlined in TiVo's patent and no matter what you think just because you can rewind video doesn't mean that you have infringed on TiVo's patent.


----------



## netsurfer

TexasAg said:


> I'll stack up my years of experience against yours any day.
> 
> So tell me, in your expert legal opinion, how is the method claim I provided above not a valid "process" claim? And how is it not patenting the idea of time-shifting? Can you provide an example of how you could implement time-shifting without violating that method claim? If not, then that claim effectively patents the idea of time-shifting.
> 
> For that matter, can you even tell me what section of the Code deals with patent law?


More than likely you will get a one line insult to your questions. Many people here think that one line insults take the place of real discussion. Who they think they are fooling, I will never know.


----------



## Curtis

Patent Application

A method for flying that includes:

1. Stepping aboard a device capable of lifting a person safely into the air for extended periods of time.
2. Activating said device.
3. Directing said device to carry the person to desired location.

Hey. This is easy.


----------



## TexasAg

rainwater said:


> There are actually two companies that hold patents for parts of the MP3 technology.


The website I linked to says that the "Fraunhofer Institute in Germany" is a co-inventor of the MP3 technology. As luck would have it, you don't need to license patented technology from all patent owners. A license from the Fraunhofer Institute means you can use the technology without getting sued, regardless of who else might own a stake in the MP3 patents.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

old7 said:


> First your claim is over broad. Second, it doesn't do anything that a VCR doesn't do.
> 
> What you present doesn't pass that laugh test.


Ok, so he needed to add;

A method for simultaneous recording and playback


----------



## classicX

Curtis said:


> Patent Application
> 
> A method for flying that includes:
> 
> 1. Stepping aboard a device capable of lifting a person safely into the air for extended periods of time.
> 2. Activating said device.
> 3. Directing said device to carry the person to desired location.
> 
> Hey. This is easy.


Yeah, landing is the hard part.


----------



## timckelley

old7 said:


> Please, I'll ask again, point out a patent attorney that claims you can patent an idea.


I think he's saying that they don't come out and admit this, but if the patent is crafted strategically, it effectively becomes the same thing. If this is true, the next question becomes: Was TiVo this strategic in the wording of its patent?


----------



## netsurfer

TexasAg said:


> Assume I filed this claim at a time when it is technically new and non-obvious.


I take that to refer too pre-VCR days or am I getting tired?


----------



## TexasAg

timckelley said:


> I think he's saying that they don't come out and admit this, but if the patent is crafted strategically, it effectively becomes the same thing.


Correct (and stated much more succinctly, too).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

timckelley said:


> I think he's saying that they don't come out and admit this, but if the patent is crafted strategically, it effectively becomes the same thing. If this is true, the next question becomes: Was TiVo this strategic in the wording of its patent?


Perhaps that is what he was thinking. If so, then I can see his point. I would just want to be careful that it wasn't overly broad. An overly broad patent can get squashed in no time.

You can't patent an idea. If you can take your idea and express it in a process and do so in manner that is not overly broad, then a patent would fit.


----------



## old7

TexasAg said:


> Correct (and stated much more succinctly, too).


Now that we seem to be on the same page.

Do you agree with bobneth/George Webster/netsurfer that any company that provides the ability to pause or rewind live video is infringing on TiVo's patent or is a workaround possible?


----------



## morac

If you filed a patent for a time-shifting device early enough such that the claim was technically new and non-obvious, it would have expired by now.

Patents files after June 8,1995 expire 20 years from the date of filing.
Patents files prior to 1995 expire 17 years from the date of issue, or 20 years from the first non-provisional patent application in the family (ie: application date) - whichever is later.

Here's an expiration calculator: http://www.patentcalculator.com/Default.aspx


----------



## classicX

old7 said:


> Now that we seem to be on the same page.
> 
> Do you agree with bobneth/George Webster/netsurfer that any company that provides the ability to pause or rewind live video is infringing on TiVo's patent or is a workaround possible?


I hope TiVo doesn't sue my company.

We make DVRs that can pause and rewind live video.


----------



## TexasAg

morac said:


> If you filed a patent for a time-shifting device early enough such that the claim was technically new and non-obvious, it would have expired by now.


Yes, but you'd have so much money, you wouldn't really care.



old7 said:


> Now that we seem to be on the same page.
> 
> Do you agree with bobneth/George Webster/netsurfer that any company that provides the ability to pause or rewind live video is infringing on TiVo's patent or is a workaround possible?


morac's diagram shows that more is required than simply the ability to pause or rewind live video (like the use of tags).

However, if you had thought of it (maybe back in the 1980s?), would you have wanted to patent the process (meaning idea) of recording a TV broadcast and allowing a viewer to pause and rewind the TV broadcast during the recording? You'd be rich, too. And I guarantee, a good patent attorney could have written you a claim back then covering all ways of implementing that idea.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> morac's diagram shows that more is required than simply the ability to pause or rewind live video (like the use of tags).


Thank you.



TexasAg said:


> However, if you had thought of it (maybe back in the 1980s?), would you have wanted to patent the process (meaning idea) of recording a TV broadcast and allowing a viewer to pause and rewind the TV broadcast during the recording? You'd be rich, too. And I guarantee, a good patent attorney could have written you a claim back then covering all ways of implementing that idea.


I'm sure that you would.


----------



## ZeoTiVo

timckelley said:


> I think he's saying that they don't come out and admit this, but if the patent is crafted strategically, it effectively becomes the same thing. If this is true, the next question becomes: Was TiVo this strategic in the wording of its patent?


Yes they did. The patent reads from broad to specific just like is being discussed. Still I doubt it means PCs with a TV recorder card are infringing just becasue they can record and play back time-shifted at the same time. Nor does it mean that VCRs infringe becaue they can play back later.
Nor does it mean Motorolla, SA and Echostar DVRs infringe merely becaue they can record and playback time-shifted - if so the trial would have been a lot shorter


----------



## netsurfer

ZeoTiVo said:


> so can we infer from all this that a VCR is infringing on TiVo patents or that TiVo is infringing on some VCR patent?


This should help. It is directly from the patent.

DETAILED DESCRIPTION OF THE INVENTION

The invention is embodied in a multimedia time warping system. A system according to the invention provides a multimedia storage and display system that allows the user to view a television broadcast program with the option of instantly reviewing previous scenes within the program. The invention additionally provides the user with the ability to store selected television broadcast programs while simultaneously watching or reviewing another program and to view stored programs with at least the following functions: reverse, fast forward, play, pause, index, fast/slow reverse play, and fast/slow play.


----------



## netsurfer

old7 said:


> I'll even bite on your assumption:
> 
> 1. A method that includes:
> (a) receive, at a first time, data associated with a television show;
> (b) present images associated with a television show;
> (c) storing the data associated with a television show;
> (d) retrieving the stored data at a later second time;
> (e) display images associated with a television show.
> 
> My method presents the data live and records the data second. I have side-stepped your overly simplistic patent.


You are focusing on the the wrong thing. Try this.

Directly from the patent.

DETAILED DESCRIPTION OF THE INVENTION

The invention is embodied in a multimedia time warping system. A system according to the invention provides a multimedia storage and display system that allows the user to view a television broadcast program with the option of instantly reviewing previous scenes within the program. The invention additionally provides the user with the ability to store selected television broadcast programs while simultaneously watching or reviewing another program and to view stored programs with at least the following functions: reverse, fast forward, play, pause, index, fast/slow reverse play, and fast/slow play.


----------



## TexasAg

netsurfer said:


> This should help. It is directly from the patent.
> 
> DETAILED DESCRIPTION OF THE INVENTION
> 
> The invention is embodied in a multimedia time warping system. A system according to the invention provides a multimedia storage and display system that allows the user to view a television broadcast program with the option of instantly reviewing previous scenes within the program. The invention additionally provides the user with the ability to store selected television broadcast programs while simultaneously watching or reviewing another program and to view stored programs with at least the following functions: reverse, fast forward, play, pause, index, fast/slow reverse play, and fast/slow play.


You need to look at the claims (usually at the end of a paper copy of a patent, or near the beginning of a patent on the USPTO's website). The claims define the legal scope of a patent. They tell you exactly what the patent owner can stop others from making, using, selling, etc.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

classicX said:


> <Samantha Carter on "netsurfer">
> 
> We're talking about _neutron star_ levels of density here.
> 
> </Samantha Carter>


And all you can do is hurl insults while not even trying to contribute to the conversation.


----------



## classicX

ZeoTiVo said:


> Nor does it mean that VCRs infringe becaue they can play back later. Nor does it mean Motorolla, SA and Echostar DVRs infringe merely becaue they can record and playback time-shifted - if so the trial would have been a lot shorter


If so, it would've been Sony suing TiVo.


----------



## netsurfer

TexasAg said:


> Nice try. If I was Henry Ford and got a patent claim for a vehicle that includes a frame, an engine, and a steering wheel, you could not avoid infringement by adding a windshield. Your vehicle would still have a frame, an engine, and a steering wheel.
> 
> In your example, you perform all 4 steps listed in my patent claim. You:
> receive, at a first time, data associated with a television show; (both a steps)
> store the data; (my step b, your step c)
> retrieve the data at a later second time; (my step c, your step d); and
> present images associated with the television show (my step d, your step e, and yes, "display" would be included in "present").
> 
> The fact that you included an extra step doesn't matter since, as a smart inventor, I paid for a good patent attorney. My patent claim covers anyone who does the 4 steps, regardless of whether you perform extra steps in addition to the 4 steps I claimed.
> 
> Here's the end result - you can effectively patent all possible implementations of an idea, meaning you have effectively patented the idea itself. You can view this as patenting only the implementations, which is fine, I have no problem with that. But when you've cut off everyone else from ever implementing your idea so that everyone would infringe your patent, I'll view it as patenting the idea (even if you don't want to admit it).


Well said.


----------



## netsurfer

TexasAg said:


> Just in case you hadn't noticed, I pinged a couple other folks on the less-than-mature discussion that seemed to be going on. I don't want to get involved in any "you're a liar" discussions.


I noticed and I understand.


----------



## gonzotek

btw, multiquote does work. Click the multiquote button on one or more posts you wish to reply to, then click quote on the last post you want quoted in your reply. The text box should then be filled with the quotes of all the posts you selected.


----------



## classicX

So, to bottom line it thus far:

Dish lost on software, and the hardware issue was kicked back down to a lower court.

Dish may appeal the decision to the Supreme Court. Unless Dish can somehow argue against the constitutionality of the entire patent system, the Supreme Court is unlikely to hear their case. It would only be a stall tactic before Dish has to write a big check to TiVo.

Dish will most likely not need to turn off any currently deployed DVRs, and will likely have to prove that the changes made to their DVR software is enough that they no longer infringe.

That about sums it up, right?


----------



## netsurfer

old7 said:


> Now that we seem to be on the same page.
> 
> Do you agree with bobneth/George Webster/netsurfer that any company that provides the ability to pause or rewind live video is infringing on TiVo's patent or is a workaround possible?


That is not completely what I said. Read this

DETAILED DESCRIPTION OF THE INVENTION

The invention is embodied in a multimedia time warping system. A system according to the invention provides a multimedia storage and display system that allows the user to view a television broadcast program with the option of instantly reviewing previous scenes within the program. The invention additionally provides the user with the ability to store selected television broadcast programs while simultaneously watching or reviewing another program and to view stored programs with at least the following functions: reverse, fast forward, play, pause, index, fast/slow reverse play, and fast/slow play.


----------



## classicX

The multiquote works for me from Firefox and IE, and also from my iPhone.


----------



## timckelley

gonzotek said:


> btw, multiquote does work. Click the multiquote button on one or more posts you wish to reply to, then click quote on the last post you want quoted in your reply. The text box should then be filled with the quotes of all the posts you selected.


Yes, and as for his comment that multiquote seems not do anything, it does do something subtle, yet visible: The multiquote button changes color, letting you know that that post has been selected for quoting.

The text box/message area doesn't get populated until you later hit the


> button.


----------



## gonzotek

timckelley said:


> Yes, and as for his comment that multiquote seems not do anything, it does do something subtle, yet visible: The multiquote button changes color, letting you know that that post has been selected for quoting.
> 
> The text box/message area doesn't get populated until you later hit the
> 
> 
> 
> button.
> 
> 
> 
> It doesn't change color for me using the green tivocommunity style, but the function still works. The default style does change color when clicking.
Click to expand...


----------



## classicX

netsurfer said:


> That is not completely what I said. Read this
> 
> DETAILED DESCRIPTION OF THE INVENTION
> 
> The invention is embodied in a multimedia time warping system. A system according to the invention provides a multimedia storage and display system that allows the user to view a television broadcast program with the option of instantly reviewing previous scenes within the program. The invention additionally provides the user with the ability to store selected television broadcast programs while simultaneously watching or reviewing another program and to view stored programs with at least the following functions: reverse, fast forward, play, pause, index, fast/slow reverse play, and fast/slow play.


Do you concede that this paragraph alone is not grounds for a patent, and that it is simply a general description of the device operation?

Do you not believe that there is more than one way to achieve the described functions?


----------



## netsurfer

ZeoTiVo said:


> Nor does it mean Motorolla, SA and Echostar DVRs infringe merely because they can record and playback time-shifted - if so the trial would have been a lot shorter


I have to disagree. The wheels of justice turn very slowly. Many witnesses to call and other crap. They have to make sure they hear all possible arguments.


----------



## netsurfer

TexasAg said:


> You need to look at the claims (usually at the end of a paper copy of a patent, or near the beginning of a patent on the USPTO's website). The claims define the legal scope of a patent. They tell you exactly what the patent owner can stop others from making, using, selling, etc.


Well, right now I am getting a little blurry eyed from too much eye strain. About ready to go do something else for a while.

If anyone wants to give that a go, here it is.

http://patft.uspto.gov/netacgi/nph-...&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/6233389


----------



## classicX

netsurfer said:


> I have to disagree. The wheels of justice turn very slowly. Many witnesses to call and other crap. They have to make sure they hear all possible arguments.


Can you explain what you mean?

If a Motorola box doesn't infringe, what doesn't that have to do with the wheels of justice?


----------



## acvthree

"The invention parses the resulting MPEG stream and separates it into its video and audio components. It then stores the components into temporary buffers. Events are recorded that indicate the type of component that has been found, where it is located, and when it occurred. The program logic is notified that an event has occurred and the data is extracted from the buffers. "

Does this mean that if the a new invention does not parse the resulting MPEG stream that it does not infringe on the Tivo invention?

Al


----------



## netsurfer

gonzotek said:


> btw, multiquote does work. Click the multiquote button on one or more posts you wish to reply to, then click quote on the last post you want quoted in your reply. The text box should then be filled with the quotes of all the posts you selected.


Ok, I just tried it on multiple posts and it works well. How do I use it on one post that is long and where I want to insert my comments between different quote boxes?


----------



## TexasAg

acvthree said:


> "The invention parses the resulting MPEG stream and separates it into its video and audio components. It then stores the components into temporary buffers. Events are recorded that indicate the type of component that has been found, where it is located, and when it occurred. The program logic is notified that an event has occurred and the data is extracted from the buffers. "
> 
> Does this mean that if the a new invention does not parse the resulting MPEG stream that it does not infringe on the Tivo invention?
> 
> Al


Yes, you are correct. The claim specifically requires parsing into different audio and video streams.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

classicX said:


> Dish will most likely not need to turn off any currently deployed DVRs, and will likely have to prove that the changes made to their DVR software is enough that they no longer infringe.


Some people are saying the burden of proof falls on Echostar to prove the new software does not infringe and that the injunction will go into effect before they can do that. Hard to know who is right.

Does anyone know when this starts playing out in the district court?


----------



## morac

I'm not a patent lawyer, but I've seen enough cases where patent's are declared obvious to get the gist of it. A patent can be challenged as obvious if someone can argue the specifics as to why a skilled person, given the same background knowledge, could come up with the same process as that which was patented. See this url.



> 1. A method for time-shift that includes:
> (a) receiving, at a first time, data associated with a television show;
> (b) storing the data;
> (c) retrieving the stored data at a later second time; and
> (d) presenting images defined by the retrieved data to a viewer.


If you replace the word "television show" with "image" you basically describe photography. If you replace the words "television show" and "images" with "sounds, the above steps basically applies to a phonograph (ie: record). Both were around long before TV even existed.

While you could file the above as a patent and it might be granted, anyone who has seen a record or cassette tape and a TV could come up with the above steps rather trivially which is why the above patent should fail to be upheld if challenged.

What makes a patent hard to challenge is if the steps are very specific such that someone else with the same knowledge would not be likely to come up with the same process. So "record television to something" would make a poor patent. "Record television onto a magnetic media using a head with 4 magnetic read/write devices which stripes the data over 4 separate data partitions" (basically a 4 head VCR) is a much stronger patent and easier to defend against be "obvious".

This is why TiVo's patent was reviewed to make sure it was not obvious. It withstood the challenge since it is very specific. A "record and play back TV" patent with no other specifics probably would not.

As an example of a patent that was granted and then considered "obvious" consider Amazon's "one click" patent.

On a related note, there are a large number of filed record television patents each with their own process.


----------



## old7

TexasAg said:


> Yes, you are correct. The claim specifically requires parsing into different audio and video streams.


Which is why I said:


old7 said:


> One obvious workaround would be to leave the audio and video stream intact and process it as one stream and not two.


----------



## netsurfer

classicX said:


> Do you concede that this paragraph alone is not grounds for a patent, and that it is simply a general description of the device operation?
> 
> Do you not believe that there is more than one way to achieve the described functions?


The paragraph is a description.

I do not believe the software that makes the time warp functions possible can be written in such a way as to make the software different enough to not infringe.

I believe that Echostar is not a bunch of engineers like Tivo, who came up with a great product. I believe that Echostar simply paid someone to reverse engineer the Tivo product so they could build their own copy of it. That is illegal and that is why the court ruled the way they did.

Then on the very day the ruling is announced Echostar does a press release with only one purpose in mind. By saying that their new software does not infringe they were trying to do damage control to try to prevent customers from switching to cable or OTA or maybe even DirecTv.

Once a customer is lost it is very difficult to get them back.


----------



## TexasAg

classicX said:


> So, to bottom line it thus far:
> 
> Dish lost on software, and the hardware issue was kicked back down to a lower court.
> 
> Dish may appeal the decision to the Supreme Court. Unless Dish can somehow argue against the constitutionality of the entire patent system, the Supreme Court is unlikely to hear their case. It would only be a stall tactic before Dish has to write a big check to TiVo.
> 
> Dish will most likely not need to turn off any currently deployed DVRs, and will likely have to prove that the changes made to their DVR software is enough that they no longer infringe.
> 
> That about sums it up, right?


Sums it up nicely.

The court found no "literal infringement" of the "hardware" claims because of the way that certain terms in the claims were defined.

It is still possible that Tivo could go back and argue that E* infringes under the "doctrine of equivalents". Tivo would argue that E* performs basically the same function in basically the same way to reach basically the same result, so it doesn't matter that E* may do things slightly different.

The "software" claims (which were actually a process claim and an apparatus claim) were infringed. E* was arguing that certain claim terms should have been interpreted more narrowly, which the court rejected. Nothing here really looks problematic, justifying a reversal by the Supreme Court (I don't see the Supreme Court overturning the decision because they disagree about what "extracting" means).



morac said:


> I'm not a patent lawyer, but I've seen enough cases where patent's are declared obvious to get the gist of it. A patent can be challenged as obvious if someone can argue the specifics as to why a skilled person, given the same background knowledge, could come up with the same process as that which was patented. See this url.


I think we've beaten this to death - my example claim was meant only to show that you can strategically craft a claim to cover any form of implementing an idea. If granted, that claim is effectively a claim for the idea since no one can practice the idea without infringing the claim.



morac said:


> As an example of a patent that was granted and then considered "obvious" consider Amazon's "one click" patent.


Be careful. Amazon's patent is currently under reexamination. It has not yet been declared obvious. While some claims have been rejected during the reexamination, the Patent Examiner has indicated that other claims are patentable.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## netsurfer

classicX said:


> Can you explain what you mean?
> 
> If a Motorola box doesn't infringe, what doesn't that have to do with the wheels of justice?


I am saying a judge has an important duty to make sure all arguments have time to be made.

Motorola box not infringing? Where is the proof of that?


----------



## netsurfer

"One obvious workaround would be to leave the audio and video stream intact and process it as one stream and not two"

You have to send audio and video to separate outputs, so they have to get separated. Even DVD's have separate audio and video files.


----------



## CuriousMark

netsurfer said:


> You have to send audio and video to separate outputs, so they have to get separated. Even DVD's have separate audio and video files.


We are talking about storing them separately not the separate analog outputs, you are dodging the question and answering one that was not asked.

DVDs store the audio and video in a single MPEG stream that is stored in a *.vob file. The streams can be separated and fed to individual audio and video decoders by the DVD player or even a DVR, but that happens way downstream of what the TiVo patent is talking about.


----------



## netsurfer

CuriousMark said:


> We are talking about storing them separately not the separate analog outputs, you are dodging the question and answering one that was not asked.
> 
> DVDs store the audio and video in a single MPEG stream that is stored in a *.vob file. The streams can be separated and fed to individual audio and video decoders by the DVD player or even a DVR, but that happens way downstream of what the TiVo patent is talking about.


If DVD stores the video and audio together in the *.vob file, then why is it that when I select only that file to burn to DVD I get no audio from the speakers?


----------



## CuriousMark

netsurfer said:


> If DVD stores the video and audio together in the *.vob file, then why is it that when I select only that file to burn to DVD I get no audio from the speakers?


No idea, it works for me.


----------



## gonzotek

netsurfer said:


> If DVD stores the video and audio together in the *.vob file, then why is it that when I select only that file to burn to DVD I get no audio from the speakers?


Your burning setup has issues.


----------



## netsurfer

gonzotek said:


> Your burning setup has issues.


I don't think so. When I select all the files on the DVD to burn I get audio.


----------



## ZeoTiVo

classicX said:


> So, to bottom line it thus far:
> 
> Dish lost on software, and the hardware issue was kicked back down to a lower court.
> 
> Dish may appeal the decision to the Supreme Court. Unless Dish can somehow argue against the constitutionality of the entire patent system, the Supreme Court is unlikely to hear their case. It would only be a stall tactic before Dish has to write a big check to TiVo.
> 
> Dish will most likely not need to turn off any currently deployed DVRs, and will likely have to prove that the changes made to their DVR software is enough that they no longer infringe.
> 
> That about sums it up, right?


that is how I read it for now. Of course Judge Folsam amy be itching to enforce his injunction and I suppose could impose court fines if DISH does not comply. In all the retrying of patent infringements case for the entire scope of DVRs no one ever answered my question on who makes the call on the injunction enforcement and what DISH can do, if anything to wiggle around it.

oh and for the "obvious" reversal of a patent two come to mind for me though I may have the players jumbled some.

I think it was Apple that tried to enforce a patent on the GUI interface for a PC. Obviously that was rejected.

And Visiclac or Lotus sued the other players over a patent on the spreadsheet - that was also obviously rejected.


----------



## netsurfer

ZeoTiVo said:


> that is how I read it for now. Of course Judge Folsam amy be itching to enforce his injunction and I suppose could impose court fines if DISH does not comply. In all the retrying of patent infringements case for the entire scope of DVRs no one ever answered my question on who makes the call on the injunction enforcement and what DISH can do, if anything to wiggle around it.


Just a guess but I would say that if 30 days goes by and DISH does not comply with the injunction then the same judge that issued the injunction would then slap them with a hefty fine for each day they fail to comply. How is that for a run on sentence?


----------



## gonzotek

netsurfer said:


> I don't think so. When I select all the files on the DVD to burn I get audio.


We'd have to go into more detail than we should in this thread, but the DVD video standard requires more than a single vob file to playback correctly on a regular consumer hardware player. Assuming your vob does not contain css encryption, it should be possible to play it in some software players.

http://www.afterdawn.com/glossary/terms/vob.cfm


----------



## CuriousMark

gonzotek said:


> Your burning setup has issues.


Or there are operator errors.


----------



## kido

echostar is toast on the software. you cannot just re-write software to make hardware do things is was not designed to do any more than you can ask your car radio to brew up a cup of coffee. 

tivo showed that the hardware in question required software components whose roles matched those found in the software portion of their patent. how those software components were crafted was irrelevant. the roles were the same. echostar claims it's new software does not infringe, but that is impossible since they also claim no difference in functionality. this means all of the roles that were present in the infringing software still exist in the new software as it controls the same hardware in the same manner.


----------



## timckelley

It will be pleasing if Echostar is blowing smoke when they say their new software doesn't infringe. If this is so, then when they attempt to prove it doesn't infringe, the judge will throw the book at them and they will hopefully be finally out of options, and then will have to come crawling to TiVo to strike a deal. At this point, hopefully TiVo will make such a deal, but on TiVo's terms, which will hopefully be quite onerous for Echostar.   

Hopefully TiVo gets the last laugh, and at the expense of Echostar's final crying over the outcome.


----------



## CuriousMark

Good point, and the best argument I have heard so far. :up: 

Although I am not sure that it is a lock that it becomes impossible to write non-infringing software, those hardware constraints probably do make it very much harder, and quite possibly could prevent it from being done. Dish would have a very hard time proving it to a judge too.


----------



## BlackBetty

kido said:


> echostar claims it's new software does not infringe


This is just Echostar trying to buy itself yet even more time. I think its great its going back to Judge Folsom now to reinstate the injunction. Folsom knows all about E*'s nonsense and I think he will act swiftly and with a heavy hand.


----------



## timckelley

BlackBetty said:


> Folsom knows all about E*'s nonsense and I think he will act swiftly and with a heavy hand.


Hopefully with a heavy foot as well, with reinforced steel-tipped boots.


----------



## TREND_WIRE

Since Echostar appealed Judge Folsom original decision; now, the term may switch. TiVo could get up to $3 in royalties from each box, infringing TiVo patent. IMHO


----------



## TexasAg

timckelley said:


> Hopefully with a heavy foot as well, with reinforced steel-tipped boots.


And big pointy spikes.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## TREND_WIRE

I wonder, how many of those TiVo like that were built, are infringing TiVo patent. Their own propaganda can be used as prove.


----------



## lessd

netsurfer said:


> I don't think so. When I select all the files on the DVD to burn I get audio.


You need the IFO file that tell the DVD player which track of audio to use (plus other things as that is the file that controls how the DVD player plays back the DVD) On a computer you don't need that IFO file as most video players on your computer just take the first audio track.


----------



## Curtis

CuriousMark said:


> Although I am not sure that it is a lock that it becomes impossible to write non-infringing software, those hardware constraints probably do make it very much harder, and quite possibly could prevent it from being done. Dish would have a very hard time proving it to a judge too.


Another thing is that a lot of the software is probably physically encoded on firmware that could only be changed by remanufacturing the chips. ASICs fall into this category. I'll bet the Broadcom chip has software burned into it.


----------



## samo

This new troll sounds just like Mojodeal of the old times that most people on this board are not aware off. Because of the user "mojodeal" stock talk was banned on this board. And I prety sure that he came back as netsurfer.
But back to the topic. Dish pushed the new software on all 5XX DVRs a while ago. I do not know if it deals with stream separation or just some piracy issues, but processor on 5XX DVRs is much more powerfull than original TiVo 25MHz chip and can easily handle MPEG storing and decoding as a single stream. If infringing issues have been taken care off with this update, then Dish doesn't have to do much to prove that software does not infringe anymore. Since number 5XX DVRs in service is relatively small, Dish can push software update in few days if they have to. So if court finds that new software still infringes, Dish can rewrite the problem areas and dowload them in a hurry. Even if update will contain bugs, it wouldn't do much damage to Dish - Dish customers are used to be beta tester.
The most TiVo can hope for is a statement that Charlie made some time ago, that he is interested in working with TiVo regarless of court decision. That statement tells me that settlement between Dish and TiVo is just around the corner. Most likely it will be some lump sum that Dish will pay to get TiVo of their back with enough money in it for TiVo CEO to shut up.


----------



## stahta01

Made Slashdot
http://yro.slashdot.org/article.pl?sid=08/02/02/0219216

Tim S


----------



## patonenow

As reported on YAHOO today TIVO won the lawsuit against DISH and there is also a permanent injunction that DISH can't use it anymore.


----------



## classicX

classicX said:


> The multiquote works for me from Firefox and IE, and also from my iPhone.





netsurfer said:


> Ok, I just tried it on multiple posts and it works well. How do I use it on one post that is long and where I want to insert my comments between different quote boxes?


I just quote the post, then edit by adding quote and endquote tags as necessary.


----------



## classicX

I hope they don't have to disable their DVRs but opt to deal with tivo.


----------



## ZeoTiVo

whne does the appeal finalize?


----------



## acvthree

ZeoTiVo said:


> whne does the appeal finalize?


I'm not a lawyer, but I'm willing to bet EchoStar will drag this out as long as possible no matter what the cost.

We're got several people on here that seem very familiar with the courts. We can all speculate why. 

To those familiar with these processes, if EchoStar used all resources available, how long could the drag this out? Months? Years?

I'm betting years, but I can be cynical when I haven't had my second cup of coffee.

Al


----------



## ZeoTiVo

acvthree said:


> I'm not a lawyer, but I'm willing to bet EchoStar will drag this out as long as possible no matter what the cost.
> 
> We're got several people on here that seem very familiar with the courts. We can all speculate why.
> 
> To those familiar with these processes, if EchoStar used all resources available, how long could the drag this out? Months? Years?
> 
> I'm betting years, but I can be cynical when I haven't had my second cup of coffee.
> 
> Al


Imeant specifically the Circuit Court appeal that was just decided. The injunction is to be reinstated when the decision finalizes and I am wondering hwat that date is. I would assume DISH needs to do something before or on that date to counteract the injunction. Since DISH statements are on the new software not infringing are nicely put as untrustworthy I am wondering when the next round of real action will take place so I can come back then


----------



## steve614

samo said:


> Dish - Dish customers are used to be beta tester.


I can't speak for other users, but I think we're Tivo beta testers.
For example, the current version of the software and ads in Now Playing folders.


----------



## Curtis

Dish can request an en banc review by the full contingent of appeals court judges at the Federal Circuit court. They could turn that request down fairly quickly or agree to hear it which might take two months. After that, Dish could request that the district court hold off on the injunction while they appeal to the Supreme Court. Judge Folsom might not agree to do that. They could also ask the Supreme Court for a stay while they appeal. I'm guessing the Supreme Court will not be interested in hearing the case.


----------



## RoyK

steve614 said:


> I can't speak for other users, but I think we're Tivo beta testers.
> For example, the current version of the software and ads in Now Playing folders.


Absolutely correct. In fact I'm pretty sure that for software we're alpha testers.


----------



## classicX

I think it won't make into 2009.


----------



## ZeoTiVo

Curtis said:


> Dish can request an en banc review by the full contingent of appeals court judges at the Federal Circuit court. They could turn that request down fairly quickly or agree to hear it which might take two months. After that, Dish could request that the circuit court hold off on the injunction while they appeal to the Supreme Court. Judge Folsom might not agree to do that. They could also ask the Supreme Court for a stay while they appeal. I'm guessing the Supreme Court will not be interested in hearing the case.


Thanks Curtis. I assume the clock is ticking if DISH does nothing. DISH doing nothing seems unlikely (smart lawyers want the billable work after all ) so I guess I am really wondering how soon they have to act - is it days or weeks before the appeal would finalize and thus force DISH lawyers to take action before that date.

PS - I agree it seems likely the Circuit Court would turn down any requests and that the Supreme Court would simply refuse to hear anything from DISH.


----------



## kido

one other quick point about the echostar software workaround response. if they had in fact created a software workaround, would they not patent that process themselves so that they could reap the rewards of those trying to avoid the tivo patent? as far as i can tell, they have not applied for any such patents recently, though others with better access to patent application data might be able to find something.

all in all, i still think echostar is toast.


----------



## shadowfax9x

We need to remember that there is still another unresolved matter before the East Texas District Court pending Judge Craven's stay...

Echostar v. TiVo

5:2005cv00081


----------



## Greg Bimson

That Echostar v. TiVo case is the one where Echostar is trying to sue TiVo for patent infringement. However, the review of Echostar's patents started before the case was filed, and as I recall, some of Echostar's patents were revoked as there was prior art available.


----------



## Curtis

Greg Bimson said:


> That Echostar v. TiVo case is the one where Echostar is trying to sue TiVo for patent infringement. However, the review of Echostar's patents started before the case was filed, and as I recall, some of Echostar's patents were revoked as there was prior art available.


TiVo will require that Dish withdraw their lawsuit as part of the settlement.


----------



## Greg Bimson

Of course, assuming that Echostar even with their new software is still in violation of the patent claims.


----------



## ufo4sale

Even if they have new software for their DVR's it doesn't negate their past crimes. They still owe the money.


----------



## Curtis

ufo4sale said:


> Even if they have new software for their DVR's it doesn't negate their past crimes. They still owe the money.


...and they still have to shut down 4 million DVRs.

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. . disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.

Infringing products: DP-501, DP-508,DP-510, DP-522,DP-625;,DP-721,DP-921, and DP-942."


----------



## ZeoTiVo

Curtis said:


> ...and they still have to shut down 4 million DVRs.


ah, but when. When!!? I want the Justice League to swoop in and make it so.


----------



## BlackBetty

ZeoTiVo said:


> ah, but when. When!!? I want the Justice League to swoop in and make it so.


lol I can see Judge Folsom swooping in wearing a cape and leotards. Take that E*!!!!! FOLSOM TO THE RESCUE!!!!!


----------



## timckelley

I think we need to have a hooded executioner with an axe cut the head off of EchoStar. And just before he does it, the judge needs to read his final opinion of exactly how dispicable they and their actions were, and why they must now be executed and be doomed to eternal damnation. No mercy will be granted to their soul.


----------



## Curtis

"When Issued. The court&#8217;s mandate must issue 7 calendar days after the time to file a petition for rehearing expires, or 7 calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time. "

"Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment."


----------



## ZeoTiVo

Curtis said:


> "When Issued. The courts mandate must issue 7 calendar days after the time to file a petition for rehearing expires, or 7 calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time. "
> 
> "Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment."


so to cut out the legalese 
21 days from the decision


----------



## classicX

ZeoTiVo said:


> so to cut out the legalese
> 21 days from the decision


Or more - if E* waits until day 7 to file a petition, they have 14 days after that petition is denied. It may take time for a judge to review and accept or deny a petition.

I give it about a month.

I have a ViP622 that will be unaffected. I also have an SD DVR that I hope will be affected - this way I can leverage with E* to either get a free upgrade to an HD DVR or to get out of my contract.


----------



## vman41

classicX said:


> Or more - if E* waits until day 7 to file a petition, they have 14 days after that petition is denied. It may take time for a judge to review and accept or deny a petition.


Don't you have that backwards (14 days to file, 7 days after petition denied)?


----------



## BlackBetty

vman41 said:


> Don't you have that backwards (14 days to file, 7 days after petition denied)?


correct.

It has now been 7 days since the decision came in. So E* has another 7 days from today to file. Hopefully E* will finally man up and settle this [email protected]


----------



## Curtis

Here is my interpretation:

14 days to file.
Mandate issues 7 days after that if there is no petition. If there is a petition, it could be an additional 7 days.

Around 28 days total.


----------



## Curtis

acvthree said:


> "The invention parses the resulting MPEG stream and separates it into its video and audio components. It then stores the components into temporary buffers. Events are recorded that indicate the type of component that has been found, where it is located, and when it occurred. The program logic is notified that an event has occurred and the data is extracted from the buffers. "
> 
> Does this mean that if the a new invention does not parse the resulting MPEG stream that it does not infringe on the Tivo invention?
> 
> Al





TexasAg said:


> Yes, you are correct. The claim specifically requires parsing into different audio and video streams.


No.

The court found that Dish infringed claims 31 and 61 neither of which require separation of audio and video.


----------



## BlackBetty

Curtis said:


> No.
> 
> The court found that Dish infringed claims 31 and 61 *neither of which require separation of audio and video*.


This is huge.


----------



## Curtis

Claims 31 and 61 are virtually identical. Here is claim 31:

"31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:

providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;

providing a source object, wherein said source object extracts video and audio data from said physical data source;

providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;

wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;

wherein said source object is automatically flow controlled by said transform object;

providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;

wherein said decoder converts said streams into display signals and sends said signals to a display;

wherein said sink object is automatically flow controlled by said transform object;

providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and

wherein said control object sends flow command events to said source, transform, and sink objects."


----------



## BobCamp1

Umm... you realize that ALL those things have to happen for the claim to apply.

So, for example, if in E*'s DVRs, the source object were manually flow controlled by said transform object, the entire claim does not apply.

This is deep into the claims, where typically you patent EXACTLY how YOU did it and one-offs of that.

The judge is going to have problems figuring out if E* is still infringing or not. As we all are, without knowing the exact inner-workings of the (formerly?) infringing DVRs.


----------



## kido

how does software manually do anything?


----------



## Curtis

BobCamp1 said:


> The judge is going to have problems figuring out if E* is still infringing or not.


I don't think he'll need to. If there is a picture, the hard drive has not been disabled. If the hard drive has not been disabled Dish is not in compliance with the injunction.


----------



## bkdtv

BobCamp1 said:


> Umm... you realize that ALL those things have to happen for the claim to apply.
> 
> So, for example, if in E*'s DVRs, the source object were manually flow controlled by said transform object, the entire claim does not apply.
> 
> This is deep into the claims, where typically you patent EXACTLY how YOU did it and one-offs of that.
> 
> The judge is going to have problems figuring out if E* is still infringing or not. As we all are, without knowing the exact inner-workings of the (formerly?) infringing DVRs.


You've got to remember that Broadcom CPUs -- used in Dish Network's DVRs -- are not terribly fast. They are specialized processors designed to accelerate certain DVR functions. And Broadcom designed their CPUs to accelerate TiVo functions.


----------



## BobCamp1

bkdtv said:


> You've got to remember that Broadcom CPUs -- used in Dish Network's DVRs -- are not terribly fast. They are specialized processors designed to accelerate certain DVR functions. And Broadcom designed their CPUs to accelerate TiVo functions.


The hardware hasn't currently been found to infringe. That got thrown out. So any claims that mainly involve hardware are currently not applicable to this case. That dividing line is big and fuzzy, and may only last a few years, but it's there.

One of the reasons judges desperately want the companies to settle is that they are deciding issues regarding technology and their VCR is still blinking 12:00. They are overwhelmed by trying to decide what's infringing and what's not.


----------



## GoHokies!

Technically, the hardware didn't get thrown out, it just got kicked back for more info/discussions.

While you are right that they aren't currently applicable, that doesn't mean that at some point in the future they won't be again.


----------



## BobCamp1

Curtis said:


> I don't think he'll need to. If there is a picture, the hard drive has not been disabled. If the hard drive has not been disabled Dish is not in compliance with the injunction.


Sigh.... The appeals process is still going on. The judge can change his original injunction since some of the judgment has been overturned. The judge can suspend his injunction to give E* time to prove they are not infringing anymore.

And does disabling the hard drive completely disable the box? If so, E* can request the injunction be modified so that they could download software that allowed the box to work with all of the DVR functionality disabled. That would make all the boxes non-infringing, since all of the hardware claims were overturned. If not, your comment is simply incorrect.

This case has a l...o...n...g way to go yet. So sit back, relax, and enjoy the flight.


----------



## ZeoTiVo

BobCamp1 said:


> The hardware hasn't currently been found to infringe. That got thrown out. So any claims that mainly involve hardware are currently not applicable to this case. That dividing line is big and fuzzy, and may only last a few years, but it's there.
> 
> One of the reasons judges desperately want the companies to settle is that they are deciding issues regarding technology and their VCR is still blinking 12:00. They are overwhelmed by trying to decide what's infringing and what's not.


plus the judge does not want his name on stopping 4 million DVRs for consumers - especially with a pro-business government.

but the hardware is most likely not infringing anyway. Broadcom chips are not the patent and indeed not even controlled by TiVo. I think the point being made though is that it may be hard to create software, considering the broadcom chips, that does not infringe. I would think the presence ofthose chips would make it harder.

Most likely the engineers were given the mandate to come up with non-infringing and then DISH took the best effort at that and updated all the DVRs so that the lawyers had a stall tactic.

the lawyers may just be waiting all the time that they can before filing.


----------



## Curtis

BobCamp1 said:


> Sigh.... The appeals process is still going on. The judge can change his original injunction since some of the judgment has been overturned. The judge can suspend his injunction to give E* time to prove they are not infringing anymore.
> 
> And does disabling the hard drive completely disable the box? If so, E* can request the injunction be modified so that they could download software that allowed the box to work with all of the DVR functionality disabled. That would make all the boxes non-infringing, since all of the hardware claims were overturned.


Infringement has already been determined. The boxes infringe. The case has been through a jury trial and an appeal. The appeals court unanimously decided that the injunction should be reinstated as written. Dish lost. It's essentially over. Dish had their chance. They had several chances. Folsom was against the injunction stay. He wrote a 14 page opinion saying there should be no stay during the appeal. I have my doubts that he will give Dish more than 2 or 3 days to shut down this time.

... and yes, shutting down the hard drive means there will be no picture. There is no way to watch a live program on a DVR it's all recorded on the hard drive first.


----------



## Curtis

ZeoTiVo said:


> plus the judge does not want his name on stopping 4 million DVRs for consumers - especially with a pro-business government.


Federal judges are not affected by politics. They are appointed for life.

Here is what Judge Folsom had to say:

"the public interest would not be disserved by a permanent injunction. The public has an interest in maintaining a strong patent system. This interest is served by enforcing an adequate remedy for patent infringement --- in this case, a permanent injunction. The infringing products are not related to any issue of public health or any other equally key interest; they are used for entertainment. The public does not have a greater interest in allowing Defendants customers to continue to use their infringing DVRs."


----------



## herdfan

BobCamp1 said:


> The hardware hasn't currently been found to infringe. That got thrown out. So any claims that mainly involve hardware are currently not applicable to this case.


There were not "thrown out." They were remanded to be retried under a different standard. It will remain the same case. It will be up to TiVo to decide if it wants to pursue the hardware claim through a retrial.


----------



## herdfan

ZeoTiVo said:


> plus the judge does not want his name on stopping 4 million DVRs for consumers - especially with a pro-business government


FWIW, Folsom was appointed by Clinton.


----------



## acvthree

herdfan said:


> FWIW, Folsom was appointed by Clinton.


Clinton was pro-business.


----------



## Curtis

acvthree said:


> Clinton was pro-business.


I thought he was a democrat.


----------



## ZeoTiVo

Curtis said:


> Federal judges are not affected by politics. They are appointed for life.


yes, but Circuit Court judges might have political ambitions beyond the bench and I was thinking mainly of them, especially with that bone tossed out of remanding the hardware down to the lower court - so a software only fix _could possibly_ fix the infringing.

Could DISH file 'whatever needs filing' in Circuit Court and avoid Judge Folsom who obviously is more than ready to enforce his injunction.


----------



## herdfan

acvthree said:


> Clinton was pro-business.


Microsoft sure didn't think so.


----------



## timckelley

herdfan said:


> Microsoft sure didn't think so.


You're not kidding. The stock market drop many people blame Bush for, really only started during the Microsoft persecution maneuver.


----------



## acvthree

NAFT, GATT, Digital Mellinium Act, appointments of Arthur Levitt and Robert Ruben.

It's been 30 years since we've had a pro-consumer President.

Al


----------



## netsurfer

BobCamp1 said:


> E* can request the injunction be modified so that they could download software that allowed the box to work with all of the DVR functionality disabled. That would make all the boxes non-infringing, since all of the hardware claims were overturned.


That would also make sure that customers throw their DVR's that cannot be used as DVR's in the trash can.


----------



## netsurfer

Curtis said:


> Infringement has already been determined. The boxes infringe. The case has been through a jury trial and an appeal. The appeals court unanimously decided that the injunction should be reinstated as written. Dish lost. It's essentially over. Dish had their chance. They had several chances. Folsom was against the injunction stay. He wrote a 14 page opinion saying there should be no stay during the appeal. I have my doubts that he will give Dish more than 2 or 3 days to shut down this time.
> 
> ... and yes, shutting down the hard drive means there will be no picture. There is no way to watch a live program on a DVR it's all recorded on the hard drive first.


And when Dish has to comply they will have to send out four+ million tuners to customers in a real big hurry or those people will be without TV.


----------



## netsurfer

acvthree said:


> Clinton was pro-business.


Every president is pro-business an is every American.

Anyone who says different is just too critical and biased.

Now lets stop the political talk. Not allowed


----------



## ZeoTiVo

netsurfer said:


> Now lets stop the political talk. Not allowed


----------



## Adam1115

netsurfer said:


> Every president is pro-business an is every American.
> 
> Anyone who says different is just too critical and biased.
> 
> Now lets stop the political talk. Not allowed


Wow, for being a member for less than a month, you must've REALLY studied the rules!

(well... some of them at least.)


----------



## BobCamp1

Curtis said:


> Federal judges are not affected by politics. They are appointed for life.
> 
> Here is what Judge Folsom had to say:
> 
> "the public interest would not be disserved by a permanent injunction. The public has an interest in maintaining a strong patent system. This interest is served by enforcing an adequate remedy for patent infringement --- in this case, a permanent injunction. The infringing products are not related to any issue of public health or any other equally key interest; they are used for entertainment. The public does not have a greater interest in allowing Defendants customers to continue to use their infringing DVRs."


Oh boy ... the judge really doesn't know what he's getting into, does he? Or he's a good poker player.

Aren't these (possibly temporarily formerly infringing) DVRs used by the public? If so, how is the public served by disabling them? The public is better served fining the offending company and forcing them to halt production. The public is not better off disabling the existing boxes. That unfairly hurts the consumer, who didn't know the boxes were infringing at the time of lease/purchase.

Furthermore, how is the public served by reinforcing the cable company "monopolies" by taking down a competitor to cable?

And if you went home today and your Tivo boxes were completely disabled due to a injunction due to patent infringement (and the Tivo does infringe), wouldn't you be just a little mad? And exactly who would you be mad at? Tivo? The other company? The judge? All of the above?

Everybody is playing poker (or a game of chicken) here -- the companies, the lawyers, and the judge. Who will blink first? It will be, if nothing else, entertaining.


----------



## netsurfer

BobCamp1 said:


> how is the public served by disabling them? The public is better served fining the offending company and forcing them to halt production. The public is not better off disabling the existing boxes. That unfairly hurts the consumer, who didn't know the boxes were infringing at the time of lease/purchase.


I think you forget that there are many cable companies who have also infringed on Tivo's patent by offering DVR's to their customers. If you total Dish with 4+ million DVR's PLUS all the cable company DVR's, they have put a serious dent in Tivo's struggle to become profitable. It will be up to Dish to compensate their customers, after all, they are the ones who stole intellectual property from Tivo. The infringing DVR's simply cannot remain in service. That would violate patent laws and put the whole patent system in an uproar. Giving people a license to steal until even after they are caught is NOT an alternative.



BobCamp1 said:


> how is the public served by reinforcing the cable company "monopolies" by taking down a competitor to cable?


Dish did just fine before DVR's were invented. It is not their core business. Dish had revenues of 10.8 billion last year. They will be fine without DVR's.


----------



## ZeoTiVo

BobCamp1 said:


> Aren't these (possibly temporarily formerly infringing) DVRs used by the public? If so, how is the public served by disabling them? The public is better served fining the offending company and forcing them to halt production. The public is not better off disabling the existing boxes. That unfairly hurts the consumer, who didn't know the boxes were infringing at the time of lease/purchase.


the injunction was seen as a tool to get Dish to settle on its own. It was hoped that DISH would license the specified DVRs and thus allow them to continue while creating a cash stream for TiVo as is rightfully TiVo inc.'s profit for the IP. 
No one knows what negotiaions or numbers have been given back and forth and we do not know if TiVo has rejected offers that might seem fair, simply to make their point about their IP or if DISH has never given a truly serious offer to TiVo, etc..
DISH has clearly had time to deal with such negotiations however. IF the DVRs are forced to shut down the Blame does lie fully with DISH, though your are right that public perception will be all over the place in finding anyone and everyone to blame.

Come on Justice League


----------



## Adam1115

netsurfer said:


> Dish did just fine before DVR's were invented. It is not their core business. Dish had revenues of 10.8 billion last year. They will be fine without DVR's.


Dish Network launched in 1996 and released their first DVR was released in 1999.

So before their DVR they had 500,000 subscribers. They now have 13,000,000. They certainly have done a bit better since their DVR's.

Regardless, there are 4,000,000 DVR's in question. You think Dish Network will be 'just fine' if it loses 30% of its subscribers?


----------



## netsurfer

Adam1115 said:


> Dish Network launched in 1996 and released their first DVR was released in 1999.
> 
> So before their DVR they had 500,000 subscribers. They now have 13,000,000. They certainly have done a bit better since their DVR's.
> 
> Regardless, there are 4,000,000 DVR's in question. You think Dish Network will be 'just fine' if it loses 30% of its subscribers?


Assuming for a moment that your 500,000 and 13 million figures are correct, those figures are not directly rated to DVR's. If they were, then they would have 12,500,000 DVR's. Plus, to say that everyone who loses their use of their DVR would cancel their account is simply way too simple minded.

I never said that Dish would lose 30 percent of their subscribers. What I should have siad is that Dish would do just fine without THEIR OWN DVR's.

Here is how this is going to play out. Tivo won the original trial and the appeal. Soon, the judge will reinstate the injunction and give Dish 30 days to disable their DVR's. Sometime very shortly after that their will be a high level meeting at Dish in which they will vote to strike a deal with Tivo. Then everybody is happy.


----------



## Adam1115

netsurfer said:


> Here is how this is going to play out. Tivo won the original trial and the appeal. Soon, the judge will reinstate the injunction and give Dish 30 days to disable their DVR's. Sometime very shortly after that their will be a high level meeting at Dish in which they will vote to strike a deal with Tivo. Then everybody is happy.


I completely agree with you here...

Except this is Charlie Ergen. The wildcard is that the 'new' software supposedly is not infringing. Or even if it is, that suddenly they have another 'new' version of the software that supposedly not infringing...


----------



## acvthree

What he said...

Netsurfer, what you describe is how any reasonable company would act. I just feel like there is going to be some trick to get this back in the courts and an injunction reinstated. I don't know how, but I would really not be surprised, because I think Charlie would rather pay lawyers $200M than ever give Tivo a dime.

Al


----------



## Curtis

Adam1115 said:


> I completely agree with you here...
> 
> Except this is Charlie Ergen. The wildcard is that the 'new' software supposedly is not infringing. Or even if it is, that suddenly they have another 'new' version of the software that supposedly not infringing...


By the time (if ever) they are able to make a case that they have new software that doesn't infringe, the existing boxes will have been turned off for years.


----------



## BobCamp1

ZeoTiVo said:


> the injunction was seen as a tool to get Dish to settle on its own.


Yep...except that in RIM vs. Blackberry, the judge was just starting to blink before the settlement was reached. He never did blink, but he sent out a notice *after *the judgment to strongly encourage the two sides to settle. He was thinking about blinking, but fortunately it never came to that.

I'm just surprised this judge hasn't blinked yet. As I said, maybe he's a better poker player....


----------



## acvthree

If the judge doesn't blink, can't EchoStar go to the upper court claimning this will harm the consumers? I'm still thinking that they have a few tricks left.


----------



## Curtis

BobCamp1 said:


> Yep...except that in RIM vs. Blackberry, the judge was just starting to blink before the settlement was reached. He never did blink, but he sent out a notice *after *the judgment to strongly encourage the two sides to settle. He was thinking about blinking, but fortunately it never came to that.
> 
> I'm just surprised this judge hasn't blinked yet. As I said, maybe he's a better poker player....


There are differences.

In the Blackberry case, the district court judge stayed his injunction while RIM appealed. In the TiVo case, Judge Folsom refused to stay his injunction while Dish appealed. The appeals court overrode him and provided the stay.


----------



## Curtis

acvthree said:


> If the judge doesn't blink, can't EchoStar go to the upper court claimning this will harm the consumers? I'm still thinking that they have a few tricks left.


No. The purpose of an appeal is to determine whether errors were made in the trial. The appeal has already concluded.


----------



## BobCamp1

netsurfer said:


> The infringing DVR's simply cannot remain in service. That would violate patent laws and put the whole patent system in an uproar. Giving people a license to steal until even after they are caught is NOT an alternative.


The Supreme Court disagrees with you. Not in THIS case (yet). But they have said that injunctions should be closely examined on a case-by-case basis and not be automatic. They even gave four criteria for that. In this case, the last criteria (public harm) could have caused Tivo problems on appeal. I still think it might to some extent, but the Appellate court said it didn't.

Besides, money solves everything. Rather than issuing an injunction, a judge could simply award additional monetary damages. Because, in the end, it isn't about being right or wrong...it's all about money.


----------



## netsurfer

Adam1115 said:


> I completely agree with you here...
> 
> Except this is Charlie Ergen. The wildcard is that the 'new' software supposedly is not infringing. Or even if it is, that suddenly they have another 'new' version of the software that supposedly not infringing...


I do not believe it is possible to write non-infringing software and still have the DVR record and playback at the same time. (The time warp patent)

The Dish statement was in my opinion, only for one purpose. To keep Dish customers from jumping ship until this is all sorted out. Their product still infringes and they know it.


----------



## netsurfer

Curtis said:


> By the time (if ever) they are able to make a case that they have new software that doesn't infringe, the existing boxes will have been turned off for years.


I agree. The judge can see that Dish is playing dirty and he will punish them severely.


----------



## netsurfer

acvthree said:


> If the judge doesn't blink, can't EchoStar go to the upper court claimning this will harm the consumers? I'm still thinking that they have a few tricks left.


It is not about harming consumers. The consumers got their DVR's from Dish for free. Besides, it is about stealing and the value of intellectual property rights and patents. You cannot just steal someones patents. The courts will punish you severely.


----------



## netsurfer

Curtis said:


> No. The purpose of an appeal is to determine whether errors were made in the trial. The appeal has already concluded.


In other words this trial is done. Dish had their day in court. If Dish wants to sue Tivo while saying their new software does not infringe, I think the courts know better and will still go through with the shut down of Dish DVR's.


----------



## ZeoTiVo

netsurfer said:


> I do not believe it is possible to write non-infringing software and still have the DVR record and playback at the same time. (The time warp patent)


the patent and the law is not even close to that simple as has been explained to your many userids many times


----------



## Adam1115

ZeoTiVo said:


> the patent and the law is not even close to that simple as has been explained to your many userids many times


Wasn't the original lawsuit claiming that TiVo had indeed 'invented' the DVR? (Including recording livetv, trick play, etc?)



mtchamp said:


> Barton began his testimony Thursday morning by holding up an "official copy" of the patent for his "multi-media time warping system."
> 
> The announcement that it had been granted by the U. S. Patent Office generated "a great deal of excitement among our investors," he said. "Our stock doubled in price the next day.
> 
> "We had hoped we'd be wildly successful, but a number of things conspired to delay" that, he added. He referred to the "nuclear winter in Silicon Valley" during which "money dried up.
> 
> "In Silicon Valley, people are not paid very well at all," Barton said. "The pay-off comes when what you invent goes public and stock options improve."
> 
> ....
> 
> Of court action, Barton added: "I've always been disappointed we didn't move sooner" against those thought to be "stealing our technology."
> 
> Over objections of defense lawyers, Barton showed the jury the main circuit board of the media switch, which he claims to have invented. Holding it up, he pointed out "the smiley TiVo face.
> 
> "The overarching principle (of the TiVo box) is that the costs were lower because it needed less memory. The design was cheaper and we could actually sell it to real people out there in the market."
> 
> Barton said his invention can perform "trick plays," like fast-forwarding and freeze-framing. "Trick plays is a generic term we use to describe anything other than normal TV watching," he explained.
> 
> "It's all about you sitting in front of the TV and getting all the enjoyment you can," Barton added.


----------



## jmoak

Adam1115 said:


> Wasn't the original lawsuit claiming that TiVo had indeed 'invented' the DVR? (Including recording livetv, trick play, etc?)


Nope. Not at all.

Please re-read this thread and the links that it provides.


----------



## netsurfer

Adam1115 said:


> Wasn't the original lawsuit claiming that TiVo had indeed 'invented' the DVR? (Including recording livetv, trick play, etc?)


Tivo did invent it. Here is the patent.

http://www.google.com/patents?id=IeoIAAAAEBAJ&dq=6233389


----------



## davezatz

I heard Al Gore invented the DVR.


----------



## jmoak

OK.... I stand corrected. Some links in this thread, even though leading to good info, can somehow be.... let's just say "misinterpreted".

Let common sense be your guide.


----------



## SterlingS

classicX said:


> I have a ViP622 that will be unaffected. I also have an SD DVR that I hope will be affected - this way I can leverage with E* to either get a free upgrade to an HD DVR or to get out of my contract.


Who says your VP622 will not be unaffected ?

Does it not use software ?


----------



## Adam1115

jmoak said:


> Nope. Not at all.
> 
> Please re-read this thread and the links that it provides.


I quoted FROM this thread. The link I quoted was on the first page.

If you're saying the thread is wrong, which parts should I re-read?



netsurfer said:


> Tivo did invent it. Here is the patent.
> 
> http://www.google.com/patents?id=IeoIAAAAEBAJ&dq=6233389


While I'm no patent attorney, it certainly appears that TiVo claims it invented the DVR as we know it (and as every DVR on the market functions.)

Everyone is piling on netsurfer, but seriously, what is disputed? I can't see how Dish can modify their software unless they disable it's dvr functionality.


----------



## ZeoTiVo

Adam1115 said:


> While I'm no patent attorney, it certainly appears that TiVo claims it invented the DVR as we know it (and as every DVR on the market functions.)
> 
> Everyone is piling on netsurfer, but seriously, what is disputed? I can't see how Dish can modify their software unless they disable it's dvr functionality.


TiVo in the form of Barton, invented a way to make a great DVR cheaply. The idea of recording a show digitally onto a hard drive and being able to play it back is not the whole of the patent - it is a way to sum up the patent in its broadest terms like any good patent writer would do for just such a situation as Tivo is in.

The court needed much more than just the fact the DISH DVR recorded and played back from a hard drive before infringment was found.

Now whether DISH can redo its software to be non-infringing would take an engineer with experience in DVR technology to determine. Chances are, though, that it would be fairly hard to do but DISH does have some pretty experienced DVR engineers.

netsurfer started out as georeg Webster, then bobneth and now netsurfer ID. The series of psts in this lineage reveal a Yahoo stock board poster. Bobneth ID in particular posted in a very spamming way stuff that was just wrong. So others piled on that. The Netsurfer ID has chilled out on that but many other posters are still mistrustful of the netsurfer postings.


----------



## BlackBetty

On the CAFC case details screen:

2/7/2008 MOTION: Entry 61 :by Appellants - Motion of EchoStar Communicatons of an extension of time within which to file their petition for rehearing and/or rehearing en banc. SERVICE : by Mail on 2/7/2008. 
REPLY 1: 2/11/2008 , Entry # 62 




Looks like TiVo's reply came today.


----------



## ufo4sale

BlackBetty said:


> On the CAFC case details screen:
> 
> 2/7/2008 MOTION: Entry 61 :by Appellants - Motion of EchoStar Communicatons of an extension of time within which to file their petition for rehearing and/or rehearing en banc. SERVICE : by Mail on 2/7/2008.
> REPLY 1: 2/11/2008 , Entry # 62
> 
> Looks like TiVo's reply came today.


What does this mean?


----------



## BlackBetty

ufo4sale said:


> What does this mean?


from my laymen eyes, I am guessing that it means E* is trying to stall yet again by asking for an extension to the 2/14/08 deadline. Seems odd, maybe they are in the works of negotiating with TiVo and thats why they want an extension. But I highly doubt it, my money is on the fact that E* is just trying to buy as much time as they possibly can. They are hoping that their lawyers or their engineers can find some wiggle room for them to escape ongoing pain. scum bags.

Can someone find entry #62 (which I assume is TiVo's response) ? Be interesting to see how that reads.


----------



## netsurfer

Adam1115 said:


> Everyone is piling on netsurfer, but seriously, what is disputed? I can't see how Dish can modify their software unless they disable it's dvr functionality.


They jump on me because there are forces at work here that few understand. This is the Tivo Community message board. The largest resource for Tivo information. That makes these forums a prime target for people who run loose with the truth. They twist things into all kinds of convolutions to try to make it sound like it makes sense, but in the end, two courts found that Tivo patents have been infringed upon because Tivo did invent the DVR.

I believe that some of these people here are some of the enemies of Tivo. Who are Tivo's enemies? Well, the studios that produce content for ABC, NBC, CBS an FOX do not like products that can fast forward through commercials. That affects how much the networks can pay them for their shows if commercial revenues take a nose dive because of commercial skipping.

Then there are all the network affiliate stations that make their money from commercials. Then there are the companies who products are being advertised. Believe me, Tivo has many VERY powerful enemies who will stop at nothing to try to put Tivo out of business.

How likely is Tivo to go out of business? Well, with their current rate of cash burn they will be bankrupt in about 19 months.

So Tivo's enemies are smelling blood and hoping to hurt Tivo any way they can. I believe some here are talking irrational BS in an effort to try to convince Tivo customers to abandon ship. Now Tivo's enemies see the possibility that Tivo will get a huge cash infusion from much more than just Dish, but also every cable company that is offering DVR's. They know that means Tivo will be a force to contend with if they do not kill Tivo now. So they are moving in for the kill with propaganda designed to make it seem that Tivo is going to go down the tubes into oblivian.

They could not be more wrong.


----------



## GoHokies!

netsurfer said:


> They could not be more wrong.


No.

You could not be more wrong.

You come here and seemingly create multiple user IDs.

You repeatedly insult folks that have spent much more time and effort studying these issues, and refuse to listen to reason and reckon your outlandish ideas on what Tivo's patents actually cover, in the face of overwhelming evidence to the contrary.

You have a completely transparent agenda here, to build up Tivo and spew forth as much vitriol and hatred at Dish/E* as possible, and are completely incapable of engaging in a rational discussion without a s--tstorm following you wherever you go.

I don't know whether you truly hold all of these values that you spout off about, or you just like to rile folks up for your own personal entertainment. Either way, your posts never contribute to the advancement of a civil, fact-based discussion about the topic at hand.

That is why netsurfer (aka George Winston, Bobneth and now it seems SterlingS) is piled on the way that he is.


----------



## BlackBetty

netsurfer, by any chance are you wearing one of these?


----------



## GoHokies!

BlackBetty said:


> But I highly doubt it, my money is on the fact that E* is just trying to buy as much time as they possibly can. They are hoping that their lawyers or their engineers can find some wiggle room for them to escape ongoing pain. scum bags.


The million dollar question (in my mind at least) is what does the stalling get them? If they genuinely believe that their current software doesn't infringe, why stall? If they know that they are still infringing, why not come to an agreement, remove the threat of the injunction and use some of that massive cash they have to buy themselves out of the problem before it gets even more expensive.

I just get the feeling that they know something that the rest of us don't...


----------



## vman41

GoHokies! said:


> I just get the feeling that they know something that the rest of us don't...


If this unrevealed information could really make a compelling argument, they would have brought it out in the trial.


----------



## ZeoTiVo

vman41 said:


> If this unrevealed information could really make a compelling argument, they would have brought it out in the trial.


Yah, I think they are just trying to make Judge Folsam blink. 4 milion DVRs is a lot of angry people.


----------



## Adam1115

ZeoTiVo said:


> Yah, I think they are just trying to make Judge Folsam blink. 4 milion DVRs is a lot of angry people.


And if I know Charlie, he'll plaster his email address and phone number on every channel if they shut down DVR's.


----------



## Curtis

Adam1115 said:


> And if I know Charlie, he'll plaster his email address and phone number on every channel if they shut down DVR's.


That would be nice. I'm sure a lot of people will be wanting to get in touch with Charlie. ;-)


----------



## SCSIRAID

Curtis said:


> That would be nice. I'm sure a lot of people will be wanting to get in touch with Charlie. ;-)


I think he meant Judge Folsoms name and email.... That should be good for a contempt citation.


----------



## BobCamp1

Adam1115 said:


> While I'm no patent attorney, it certainly appears that TiVo claims it invented the DVR as we know it (and as every DVR on the market functions.)


ReplayTV and Microsoft are generally credited with "inventing" the DVR. For example, see patent # 6324338. Doesn't THAT cover the very basic function of a DVR? You can't tell who really invented the DVR -- they filed their patents within a week of each other, so you'd have to go to their engineering notebooks to figure out who invented it first. (Typically, when you think of an idea, you put it into a special notebook, date it, and get a witness or two to sign and date it. Then the company collects your notebooks as you fill them up. They do this because in the U.S., it's when you think of the idea. In other countries, it's when you file the patent.)

Tivo owns a few patents regarding their specific implementation, plus other bonus features such as wishlists and the autocorrection on RW/FF.

E* did request that the Patent Office review Tivo's patent, they did and said that it was unique enough (i.e. it didn't conflict with other patents). Sometimes you really have to split hairs to determine the difference -- or smoke whatever the Patent Office is smoking. :up::up::up:

FYI, ReplayTV's patents are now owned by D*.


----------



## BobCamp1

Adam1115 said:


> And if I know Charlie, he'll plaster his email address and phone number on every channel if they shut down DVR's.


This has been done before. (I'll never be able to find that link ,though).

Of course, simply not complying with the injunction will also get you a citation. Probably not as bad a one, either.


----------



## ZeoTiVo

BobCamp1 said:


> ReplayTV and Microsoft are generally credited with "inventing" the DVR.


I agree with you on this Bob and will repeat what I said above

TiVo in the form of Barton, invented a way to make a great DVR cheaply. The idea of recording a show digitally onto a hard drive and being able to play it back is not the whole of the TiVo time warp patent - it is a way to sum up the patent in its broadest terms like any good patent writer would do for just such a situation as Tivo is in


----------



## BobCamp1

BlackBetty said:


> from my laymen eyes, I am guessing that it means E* is trying to stall yet again by asking for an extension to the 2/14/08 deadline. Seems odd, maybe they are in the works of negotiating with TiVo and thats why they want an extension. But I highly doubt it, my money is on the fact that E* is just trying to buy as much time as they possibly can. They are hoping that their lawyers or their engineers can find some wiggle room for them to escape ongoing pain. scum bags.
> 
> Can someone find entry #62 (which I assume is TiVo's response) ? Be interesting to see how that reads.


E* hasn't exhausted the appeals process yet. They can ask for a rehearing en banc, and after that it's the US Supreme Court. If an appeal is granted, a stay on the injunction will be issued during the process.

E* has been hoping Tivo will settle for a lesser amount the entire time. E* has dragged it on this long because Tivo has been losing money (i.e. not profitable) the entire time, and at some point they may become desperate and settle for a lesser amount just to get an injection of cash. Of course, there is the chance they are not guilty -- therefore the trial. The settlement amount goes up and down during the trial, based on how well it's going.

Also, on appeal, some of the original findings may get (and have been) overturned, which would also reduce the settlement amount. Finally, an appellate court may alter the amount rewarded or send that back down with some guidelines, which would alter the settlement amount and/or result in the injunction being dissolved.

They don't need time to negotiate -- they have had plenty of that. They now need the correct dollar amount and/or terms.


----------



## dswallow

BobCamp1 said:


> Also, on appeal, some of the original findings may get (and have been) overturned, which would also reduce the settlement amount.


Probably wouldn't. If it infringed in any way, at all, it caused the loss to TiVo that was identified at trial. The only thing that could change the judgment would be if some models were no longer found to infringe, thus changing the basis for the math.


----------



## Curtis

BobCamp1 said:


> E* hasn't exhausted the appeals process yet. They can ask for a rehearing en banc, and after that it's the US Supreme Court. If an appeal is granted, a stay on the injunction will be issued during the process.


"Four of the nine judges must vote to grant a writ of certiorari. This is called the "rule of four." The great majority of cases brought to the Supreme Court are denied certiorari (approximately 7,500 petitions are presented each year; between 80 and 150 are granted), because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important to merit the use of its limited resources." wikipedia

The appeals court does not have to stay the injunction while Dish appeals to the Supreme Court:

" Pending Petition for Certiorari. 
(A) A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial 
question and that there is good cause for a stay. "


----------



## ZeoTiVo

Curtis said:


> "Four of the nine judges must vote to grant a writ of certiorari. This is called the "rule of four."


so what kind of issues are in this case that would garner the interest of 4 Supreme Court Justices?

an injunction affecting a large base of consumers?
Some broad point of patent law?

These guys are set for life in a Job they typically consider the pinnacle so it would have to be some point of law that would make them want to hear the appeal. Which leads to my real question...

How quickly do these writs get turned down?


----------



## qz3fwd

Bad blood aside here from the forum members here on this thread-If D*/E* have infringed as stated, I hope the courts take no mercy on them and punish them severly, and simultaneously reward Tivo with a tresure chest like you have never seen before. Especially, if these comapnies are playing games and try to put Tivo out of business before having to face the grim reaper, they should be made to feel even more pain.

Thats my opinion on the subject.

Thank You
Have a good day.


----------



## GoHokies!

vman41 said:


> If this unrevealed information could really make a compelling argument, they would have brought it out in the trial.


I wasn't necessarily thinking compelling argument for non-infringing.

I'm leaning towards what others have suggested that Dish is trying to run out the clock and hope that Tivo's financial position becomes so dire that they'll be forced to accept a lowball offer from Dish to remain in business.

Like qz3fwd and others have expressed, I hope that this tactic backfires in the worst possible way, and dish gets hammered.


----------



## Y-ASK

ZeoTiVo said:


> so what kind of issues are in this case that would garner the interest of 4 Supreme Court Justices?


Maybe 4 of the justices own a Dish DVR ? Then again that might be a conflict of interest...

Y-ASK


----------



## timckelley

The judge is going to get so offended, that he's going to personally throw Dish's lawyers into jail.


----------



## GoHokies!

Dish can raise some of the money that they owe Tivo by televising this.

I'd pay to see it (on FIOS, of course).


----------



## BlackBetty

GoHokies! said:


> I wasn't necessarily thinking compelling argument for non-infringing.
> 
> I'm leaning towards what others have suggested that Dish is trying to run out the clock and hope that Tivo's financial position becomes so dire that they'll be forced to accept a lowball offer from Dish to remain in business.
> 
> Like qz3fwd and others have expressed, I hope that this tactic backfires in the worst possible way, and dish gets hammered.


I don't agree with this logic. TiVo can do a shelf offering and create more stock to sell in order to raise more money. They have done this in the past.


----------



## qz3fwd

I wonder if dish will fire back at their pissed customers who no longer have working dvr's by pointing to the notice on the outside of the box which states that they do not own the device but have the privelage of leasing the hardware from dish, all for only like $199+ upfront costs?


----------



## ZeoTiVo

Y-ASK said:


> Maybe 4 of the justices own a Dish DVR ? Then again that might be a conflict of interest...
> 
> Y-ASK


LOL. had not considered that angle. Of course 3 of them probably have no idea they have DISH and only 2 of them actually use the DVR feature


----------



## classicX

SterlingS said:


> Who says your VP622 will not be unaffected ?
> 
> Does it not use software ?





Curtis said:


> ...and they still have to shut down 4 million DVRs.
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. . disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.
> 
> Infringing products: DP-501, DP-508,DP-510, DP-522,DP-625;,DP-721,DP-921, and DP-942."


SterlingS - I can't believe you joined the forums just to ask that.


----------



## Greg Bimson

There is that curiously added statement at the end of the infringing products: "and those not colorably different than those listed". It is possible that the newer Echostar DVR's infringe, and it will be brought up when the case is remanded back to the District Court level, and Judge Folsom's chambers.


----------



## classicX

qz3fwd said:


> I wonder if dish will fire back at their pissed customers who no longer have working dvr's by pointing to the notice on the outside of the box which states that they do not own the device but have the privelage of leasing the hardware from dish, all for only like $199+ upfront costs?


Two corrections.

For new service, you don't pay up front for anything. [When I had service installed, I paid exactly $0.00 for two DVRs running four rooms.] You're thinking of DirecTV, who currently charge $199 up front for every leased HDDVR after the first, which is $99.

Second, With Dish, you can lease additional DVRs (if you're lucky) or purchase them outright. The price for an HD-DVR (last time I checked) was around $500. You can get them for substantially less on eBay.


----------



## classicX

I think Dish is hoping for success in a war of attrition, hoping that TiVo will be dead or dying by the time comes to pay up.

I sincerely doubt that the DVRs, even the infringing ones, will be summarily shut down - the majority of DVR users would be livid and quickly leave Dish for an alternative, and even those in contract would demand that the early termination fee be waived (myself included).


----------



## GoHokies!

BlackBetty said:


> I don't agree with this logic. TiVo can do a shelf offering and create more stock to sell in order to raise more money. They have done this in the past.


I'm going to plead ignorance on this one, I have no idea what a "shelf offering" is.

Off to wikipedia for more learning!


----------



## herdfan

classicX said:


> I think Dish is hoping for success in a war of attrition, hoping that TiVo will be dead or dying by the time comes to pay up.


If TiVo got into that bad of financial shape, there would be several vultures waiting to pounce to get at the $100 verdict that TiVo holds. And those vultures will have very deep pockets, so E* will still lose.


----------



## herdfan

GoHokies! said:


> I'm going to plead ignorance on this one, I have no idea what a "shelf offering" is.


It is where a company has registered securities for sale, but has not issued all of them. They have a period of time, ususally 2 years, to complete the sale. Companies do this for a variety of reasons including cash demands stock price appreciation.

For TiVo to do a shelf offering, they would have to have registered securities with in the two year period. Don't know the status of this.

Edit: Looks like they can. From the August 1, 2007 Shareholder' meeting:



> We are proposing to amend and restate our Amended & Restated Certificate of Incorporation to increase the authorized common stock from 150,000,000 shares to 275,000,000 shares (referred to hereafter as the "Authorized Shares Amendment"). No change is proposed in the authorized number of preferred stock. The text of the Authorized Shares Amendment is attached to this Proxy Statement as Appendix B. Currently, we have 150,000,000 shares of common stock authorized, of which 97,474,913 shares are issued and outstanding as of May 1, 2007 and 17,164,240 shares are reserved for issuance under our current equity-based compensation plans.


Assuming it passed. Companies generally don't put things up for a vote unless they already have the votes for approval.


----------



## qz3fwd

Yeah-I meant DirectTV, not Dish.
Regardless I cannot fathom why anyone would pay for reduced resolution, bitrate starved "HDLite" programming. Its like they run the feeds through a meat grinder. I cannot stand the soft picture they put out.

Long live Tivo-though I do hope they fix many of the annoyances in the current product and update the frackin GUI to HD levels.


classicX said:


> Two corrections.
> 
> For new service, you don't pay up front for anything. [When I had service installed, I paid exactly $0.00 for two DVRs running four rooms.] You're thinking of DirecTV, who currently charge $199 up front for every leased HDDVR after the first, which is $99.
> 
> Second, With Dish, you can lease additional DVRs (if you're lucky) or purchase them outright. The price for an HD-DVR (last time I checked) was around $500. You can get them for substantially less on eBay.


----------



## GoHokies!

herdfan said:


> It is where a company has registered securities for sale, but has not issued all of them. They have a period of time, ususally 2 years, to complete the sale. Companies do this for a variety of reasons including cash demands stock price appreciation.


Awesome, thanks - I couldn't find a link that could explain it to a layman.

Dish just needs to shut up and pay up.


----------



## netsurfer

vman41 said:


> If this unrevealed information could really make a compelling argument, they would have brought it out in the trial.


What he said.


----------



## netsurfer

Greg Bimson said:


> There is that curiously added statement at the end of the infringing products: "and those not colorably different than those listed". It is possible that the newer Echostar DVR's infringe, and it will be brought up when the case is remanded back to the District Court level, and Judge Folsom's chambers.


That is exactly right. Those who claim that units not on the list do not infringe are simply not thinking.


----------



## netsurfer

classicX said:


> I think Dish is hoping for success in a war of attrition, hoping that TiVo will be dead or dying by the time comes to pay up.


Things are shaping up very nicely for Tivo. Therefore, I believe it is highly likely that if things do get dragged out, some venture capitalists will give Tivo a bridge loan to get them through.


----------



## netsurfer

GoHokies! said:


> I'm going to plead ignorance on this one, I have no idea what a "shelf offering" is.


When a company decides to do an initial public offering of stock (IPO) they rarely sell all the shares they filed for with the Securities and Exchange Commission. The shares not sold are said to be on the shelf, so to speak.

By offering the shelf shares for sale at a reduced price from the current stock price, companies can raise millions of dollars very quickly because those lucky enough to buy off the shelf can usually make a tidy profit. There is usually an agreement that the shares cannot be sold for 90 days. That is called the lock up period and it is for the purpose of making sure that the shares are not sold for profit immediately. Millions of shares being sold rapid fire by the people who bought them off the shelf would depress the stock price significantly.


----------



## GoHokies!

Thanks netsurfer, I knew that we'd find your expertise useful.

If only you knew as much about patents and patent law.


----------



## ZeoTiVo

netsurfer said:


> That is exactly right. Those who claim that units not on the list do not infringe are simply not thinking.


can you provide proof the ones not listed are the same as the infringing ones?

edit to add - oh and thanks for taking GoHokie's bait and proving to us once again that you are the yahoo stock troll known way back as mojo


----------



## netsurfer

ZeoTiVo said:


> can you provide proof the ones not listed are the same as the infringing ones?
> 
> edit to add - oh and thanks for taking GoHokie's bait and proving to us once again that you are the yahoo stock troll known way back as mojo


Let's just say that a DVR infringing on Tivo's patent is a DVR not worth having once it no longer infringes. Just a tuner after the hard drive is disabled.

Never heard of Mojo. Got a chip on your shoulder. Buy a brush.


----------



## ZeoTiVo

netsurfer said:


> Let's just say that a DVR infringing on Tivo's patent is a DVR not worth having once it no longer infringes. Just a tuner after the hard drive is disabled.


so that would be NO


----------



## TUDrewser

classicX said:


> Two corrections.
> 
> For new service, you don't pay up front for anything. [When I had service installed, I paid exactly $0.00 for two DVRs running four rooms.] You're thinking of DirecTV, who currently charge $199 up front for every leased HDDVR after the first, which is $99.
> 
> Second, With Dish, you can lease additional DVRs (if you're lucky) or purchase them outright. The price for an HD-DVR (last time I checked) was around $500. You can get them for substantially less on eBay.


IIRC, I paid $199 with a $50 rebate to get my Dish HD dual tuner DVR box 18 months or so ago. And that was just for the opportunity to lease it for $5-6 a month. They wanted $450 to purchase it outright from them.


----------



## Adam1115

weird that my fake name and his fake name were the same... but,

Please wait while we find a Sales Representative to assist you...
If your wait time exeeds your expections, please try again later or contact us at 1-888-347-4881.
You have been connected to (01)John F.
(01)John F: Welcome to Dish Network, the leader in HD and DVR services. How can I assist you with your order today?
John: I'm thinking of signing up for Dish Network and getting a DVR, but I'm concerned about the lawsuit that may cause Dish Network to have to shut off their DVR's to all customers.
(01)John F: Please give me a moment to research that information for you. This may take a few minutes.
John: Should I be concerned about this?
(01)John F: I am glad to inform you that the court provided us favor to continue our DVR services.
John: I understand that this is only temporary and that they might still get turned off, is that true>
(01)John F: You don't have to worry since we provide our DVR's for free and even have improved our DVR equipment.
(01)John F: No. I can guarantee that we will provide our DVR and will do so even in the future.
(01)John F: Our DVR technology allows you to pause and record live TV. The DVR that we offer has a Dual tuner that allows for two users to view and record independently, with full functionality in each room.
John: Even if Dish loses their appeals, there is no risk of a shutoff?
(01)John F: You can order now using this link.
John: Your HD-DVR is not free...
The agent is sending you to http://www.dishtv.com/mydish.jsp.
John: Even if Dish loses their appeals, there is no risk of a shutoff?
(01)John F: The HD DVR had no upfront costs.
(01)John F: This is worth over $499.
(01)John F: The $5.98 is a service fee for DVR options.
(01)John F: Let me check on that last question of yours.
(01)John F: I do apologize, this taking a while, please hold a little longer while I check.
John: Sure, thank you for checking.
(01)John F: It will only take me a moment to look that information up for you. 
(01)John F: The decision for the DVRs in the future may depend on the decisions of Court, these decisions will vary.
(01)John F: However, not we are provided with the permission to continue providing the equipment.
(01)John F: We are already provided with the license for the hardware (this has been won by Dish), the only thing that we need to win is the software rights.
John: I understand, thank you very much. Is Dish willing to waive the activation fee if I don't want to commit for two years based on this uncertainty? 
(01)John F: I do apologize, the no commitment offer charges the activation fee upfront. 
(01)John F: However, with the $49.99, you can save also on install fees and hardware, since equipment has no upfront costs.
(01)John F: All you need to take care of is the activation fee. 
John: Ok, thank you very much for your help. You have been very helpful.


----------



## GoHokies!

Adam1115 said:


> (01)John F: The decision for the DVRs in the future may depend on the decisions of Court, these decisions will vary.
> *(01)John F: However, not we are provided with the permission to continue providing the equipment.*
> (01)John F: We are already provided with the license for the hardware (this has been won by Dish), the only thing that we need to win is the software rights.


Talk about pushy!!!

I'm having trouble parsing the little bit in bold. It almost sounds like he's trying to say that "We're not supposed to be providing new hardware", but the rest of his pitch certainly indicated that he was willing to do so.

We should all just keep tying up their CSRs seeing what different answers we get.


----------



## Curtis

Dish's request for extension of time to file a petition for rehearing was granted. It's now due March 17.


----------



## BobCamp1

GoHokies! said:


> Talk about pushy!!!
> 
> I'm having trouble parsing the little bit in bold. It almost sounds like he's trying to say that "We're not supposed to be providing new hardware", but the rest of his pitch certainly indicated that he was willing to do so.
> 
> We should all just keep tying up their CSRs seeing what different answers we get.


I thinks he was just confused. I thought he said there was no issue in providing the hardware. Which, as of this moment in time, there isn't. I'm not sure what calling customer service will do. They barely know what's going on as it is -- why would they know an up-to-date status on the lawsuit?

They haven't pulled back on their HD DVR advertising campaign, either. And why should they if they think they don't infringe and the judge hasn't ruled otherwise yet?

I also saw they got an extension from Valentine's Day to St. Patrick's Day. Maybe they'll get another extension to Cinco de Mayo next (apparently, the court is nothing if not festive).


----------



## ZeoTiVo

BobCamp1 said:


> I thinks he was just confused. I thought he said there was no issue in providing the hardware. Which, as of this moment in time, there isn't. I'm not sure what calling customer service will do. They barely know what's going on as it is -- why would they know an up-to-date status on the lawsuit?


I found it interesting that the online CSR knew enough about the case to make a hardware vs software distinction. You would have to follow the case fairly closely to know that. Either someone or some talking points memo was directing that CSR. Even if slightly wrong in thinking the hardware was exonorated versus remanded. Still how funny was that to say well the hardware is fine, you jus may not be able to run the software


----------



## classicX

herdfan said:


> If TiVo got into that bad of financial shape, there would be several vultures waiting to pounce to get at the $100 verdict that TiVo holds. And those vultures will have very deep pockets, so E* will still lose.


Assuming E* doesn't just gobble up TiVo first.


----------



## BlackBetty

Curtis said:


> Dish's request for extension of time to file a petition for rehearing was granted. It's now due March 17.


I can't believe with all that has happened so far, with all the time that has passed since the original verdict and the original injunction, that E* yet again gest additional time. Amazing. The courts are really doing TiVo an injustice by allowing this to continue like it has.


----------



## Adam1115

classicX said:


> Assuming E* doesn't just gobble up TiVo first.


Interesting. If the 'settlement' TiVo wants is too high, a hostile takeover?


----------



## timckelley

classicX said:


> Assuming E* doesn't just gobble up TiVo first.


Given the size of the judgement, I'd think E* would have to offer a high price to buy out TiVo, or TiVo could accept higher bids elsewhere. E* still winds up losing because of the lawsuit, because TiVo's buyout price will equal it's future profitability + lawsuit judgement. Effectively, E* still pays the judgement in the form of the buyout price.


----------



## SullyND

classicX said:


> Assuming E* doesn't just gobble up TiVo first.


I would think Comcast might step in first if something like that were to happen.


----------



## classicX

qz3fwd said:


> Regardless I cannot fathom why anyone would pay for reduced resolution, bitrate starved "HDLite" programming. Its like they run the feeds through a meat grinder. I cannot stand the soft picture they put out.


I assume you're talking about DirecTV again, as I saw no appreciable difference between my Comcast signal, an OTA HD broadcast, and the HD from Dish.


----------



## TUDrewser

ZeoTiVo said:


> I found it interesting that the online CSR knew enough about the case to make a hardware vs software distinction. You would have to follow the case fairly closely to know that...


Or google it during that "Please wait while I research" part..


----------



## classicX

TUDrewser said:


> IIRC, I paid $199 with a $50 rebate to get my Dish HD dual tuner DVR box 18 months or so ago. And that was just for the opportunity to lease it for $5-6 a month. They wanted $450 to purchase it outright from them.


Suffice it to say, that was 18 months ago. Things have changed since then.


----------



## classicX

GoHokies! said:


> Talk about pushy!!!
> 
> I'm having trouble parsing the little bit in bold. It almost sounds like he's trying to say that "We're not supposed to be providing new hardware", but the rest of his pitch certainly indicated that he was willing to do so.
> 
> We should all just keep tying up their CSRs seeing what different answers we get.


not = now, that's how I read it.


----------



## classicX

Adam1115 said:


> Interesting. If the 'settlement' TiVo wants is too high, a hostile takeover?


I mean, if TiVo is dead or dying before E* has to pay up, E* could just offer to buy TiVo, or just make it a hostile takeover.

If it plays out that way, it would almost certainly be the cheaper route.


----------



## BobCamp1

classicX said:


> I mean, if TiVo is dead or dying before E* has to pay up, E* could just offer to buy TiVo, or just make it a hostile takeover.
> 
> If it plays out that way, it would almost certainly be the cheaper route.


Yep. Or E* can make Tivo an offer they couldn't refuse, no matter how low it was.

I don't think E* is interested in purchasing a company that consistently loses money. But I think they can only stall for another year at the most. And it doesn't look like Tivo will be horrible shape by then. Unless the injunction is lifted during the "E* sues Tivo" lawsuit.


----------



## ZeoTiVo

classicX said:


> I mean, if TiVo is dead or dying before E* has to pay up, E* could just offer to buy TiVo, or just make it a hostile takeover.
> 
> If it plays out that way, it would almost certainly be the cheaper route.


TiVo is not in that bad a shape to be in imminent peril though. maybe early on when E* was looking at some years for it all to play out. Now there is not that much time left.

Sure E* is dragging it out but that is just typical lawyer tricks and their marching orders to drag it out - give E* more time to deal with the infringing DVRs out in the wild


----------



## Adam1115

BobCamp1 said:


> I don't think E* is interested in purchasing a company that consistently loses money. But I think they can only stall for another year at the most. And it doesn't look like Tivo will be horrible shape by then. Unless the stay is lifted during the "E* sues Tivo" lawsuit.


It wouldn't lose money after E* fired the entire R&D staff and only kept the IT staff around to keep the servers running to collect the $12.95/mo from current customers.

Then took it's newly acquired patents and started suing cable companies...


----------



## Martin Tupper

classicX said:


> I mean, if TiVo is dead or dying before E* has to pay up, E* could just offer to buy TiVo, or just make it a hostile takeover.
> 
> If it plays out that way, it would almost certainly be the cheaper route.


That's assuming that E* is the only interested buyer.

Right now, E* would have an edge in a bidding war, because anyone else willing to buy TiVo would need to pay the legal fees in order to finish the E* suit. E* wouldn't.

But once E* exhausts its appeals, that edge disappears. The new owner would be entitled to the full damages (with interest), wouldn't have to pay the addition legal costs, and would have no reason to negotiate a lower settlement.

If the patent suit is upheld, I can definitely imagine D* entering the fray. They'd either end up holding the patents which their direct competitor has been found to infringe upon (padding their DVR patent portfolio in the process), or they'd have succeeded in forcing said competitor to spend more than they otherwise would have. Win-win.

Then there are other deep-pocket players like Apple, Microsoft, etc.

The idea that E* will be able to swoop in and buy up TiVo at a discount is wishful thinking.


----------



## 20TIL6

The fact that TiVo, and DVRs in general, are so disruptive to the broadcast/advertising business model, I see Google making a play.

There are numerous threads here about TiVo's experimentation with advertising in a DVR world. It's something that definitely must be fixed (the post DVR advertising world), plus none of the generic players are doing anything about it.

More than just being a DVR, I think TiVo is attempting to repair what it originally disrupted. And along the way, build new revenue streams and help to adapt the broadcast/advertising business model. Again, I think Google would be interested.


----------



## ZeoTiVo

so this has gone from a thread on TiVo winning an over 100 milliopn dollar judgement along with injunction on DiSH dvrs to someone buying TiVo. 

This board has more mood swings than that nutty girl I dated in College


----------



## jmoak

ZeoTiVo said:


> This board has more mood swings than that nutty girl I dated in College


Welcome to TCF, The Official Tivo Bipolar Disorder Board!


----------



## acvthree

No, no! It's the Official Tivo Clinical Depression Board. No matter what happens, it has to be bad.


----------



## ZeoTiVo

acvthree said:


> No, no! It's the Official Tivo Clinical Depression Board. No matter what happens, it has to be bad.


I thought it ws the immenent death of TiVo  board


----------



## acvthree

Only if it is the result of a class action. <take a drink...ok, it's 5:00 here...maybe that was cheating>


----------



## willbot

ZeoTiVo said:


> I thought it ws the immenent death of TiVo  board


Tivo isn't going anywhere, once they put dish out of business, they'll be able to go after all the other DVR makers and users and be king of the hill.


----------



## ZeoTiVo

willbot said:


> Tivo isn't going anywhere, once they put dish out of business, they'll be able to go after all the other DVR makers and users and be king of the hill.


thanks for the reply netsurfer, even if it is useless spam


----------



## old7

ZeoTiVo said:


> thanks for the reply netsurfer, even if it is useless spam


My thoughts exactly. 

He doesn't hide very well.


----------



## Phantom Gremlin

Adam1115 said:


> (01)John F: I am glad to inform you that the court provided us favor to continue our DVR services.


This phrasing suggests that "John F" resides in a "British Commonwealth" nation. I'm thinking India. I'm also thinking that the TV viewing habits of "John F" wouldn't be adversely affected by a decision against Dish Network.


----------



## netsurfer

ZeoTiVo said:


> thanks for the reply netsurfer, even if it is useless spam


Sorry, but the guy you are replying to is not me.


----------



## willbot

old7 said:


> My thoughts exactly.
> 
> He doesn't hide very well.


I have no idea what you are talking about.

There can be only one person bright enough to see the writing on the wall?

Dish are a bunch of theives and are going down like they deserve. Don't know why a community of people that are sopposed to be Tivo fans act like Dish's biggest supporters.


----------



## timckelley

I think most of us want Dish to pay an onerous penalty for what they've done.  I wish it would happen sooner instead of later.


----------



## SterlingS

GoHokies! said:


> No.
> 
> That is why netsurfer (aka George Winston, Bobneth and now it seems SterlingS) is piled on the way that he is.


Sorry Hoakies, but I'm me. Sorry I dont have 5000 posts like you and classicx. Still think I'm somone else send me an email.



classicX said:


> SterlingS - I can't believe you joined the forums just to ask that.


Yes I did,

I have checked in and out of this board for years.

I'm a big Tivo fan.

That being said, this whole dish delaying thing just pisses me off. Who said that future DVRs such as a VP722?, will be exempt ? Seems to me Folsom could include them into the mix with the stroke of the pen. 'Cause it does use software -- as you well know. They can fight about that in a few months.

Nothing would make me happier than to see justice served, TIVO has been screwed enough.


----------



## netsurfer

willbot said:


> Don't know why a community of people that are supposed to be Tivo fans act like Dish's biggest supporters.


Hint: People who make money from commercials, want to see Tivo die.


----------



## BlackBetty

BlackBetty said:


> On the CAFC case details screen:
> 
> 2/7/2008 MOTION: Entry 61 :by Appellants - Motion of EchoStar Communicatons of an extension of time within which to file their petition for rehearing and/or rehearing en banc. SERVICE : by Mail on 2/7/2008.
> REPLY 1: 2/11/2008 , Entry # 62


Someone on another board was able to get their hands on both Entries. He posted Entry #61 so far and will post #62 later today.

*Entry 61* E*'s request for an extension. 
Basically it just says that their lawyers are way to busy in February to give the case the attention it needs. Here it is:

*Entry 62* TiVo's Response
This one sounds very interesting. TiVo addresses several issues, such as E* using "Better than TiVo" in their ads. They also quote lines by Charlie Ergen during quarterly conference calls, such as how E*'s DVR business is doing very well, and TiVo in contrast mentions how their subs are dwindling.
f

EDIT:
link now up and running


----------



## ufo4sale

BlackBetty said:


> Someone on another board was able to get their hands on both Entries. He posted Entry #61 so far and will post #62 later today.
> 
> *Entry 61* E*'s request for an extension.
> Basically it just says that their lawyers are way to busy in February to give the case the attention it needs. Here it is:
> rl]
> 
> *Entry 62* TiVo's Response
> This one sounds very interesting. TiVo addresses several issues, such as E* using "Better than TiVo" in their ads. They also quote lines by Charlie Ergen during quarterly conference calls, such as how E*'s DVR business is doing very well, and TiVo in contrast mentions how their subs are dwindling.
> 
> link my not work till later today.


Second link doesn't work but interesting none the less.


----------



## peteypete

Those of you with skin in the game should follow this thread over at Yahoo.

posted docs regarding the lifting of the stay.

http://messages.finance.yahoo.com/S...8009&tid=418993&mid=418993&tof=1&frt=2#418993


----------



## BlackBetty

peteypete said:


> Those of you with skin in the game should follow this thread over at Yahoo.
> 
> posted docs regarding the lifting of the stay.
> 
> http://messages.finance.yahoo.com/S...8009&tid=418993&mid=418993&tof=1&frt=2#418993


wow, you could have looked 2 posts up to find that same info.


----------



## Daven

BlackBetty said:


> Someone on another board was able to get their hands on both Entries. He posted Entry #61 so far and will post #62 later today.
> 
> *Entry 61* E*'s request for an extension.
> Basically it just says that their lawyers are way to busy in February to give the case the attention it needs. Here it is:
> 
> *Entry 62* TiVo's Response
> This one sounds very interesting. TiVo addresses several issues, such as E* using "Better than TiVo" in their ads. They also quote lines by Charlie Ergen during quarterly conference calls, such as how E*'s DVR business is doing very well, and TiVo in contrast mentions how their subs are dwindling.
> 
> EDIT:
> link now up and running


Gee Whiz Black Betty the least you could have done is give Mainer_Ayah a little credit for getting and posting the documents.

--Mainer


----------



## GoHokies!

SterlingS said:


> Sorry Hoakies, but I'm me. Sorry I dont have 5000 posts like you and classicx. Still think I'm somone else send me an email.


Sorry, I'm not sure I'm going to buy that (not that my opinion matters). A little bit of the history of the posters I mentioned would be helpful and you fit the mold.

I never commented on the number of posts you have - not sure what that is relevant. Also, you'll note that I gave you the common courtesy of spelling your name correctly - something that you should try.

Granted I'm a little biased, but Tivo's filing looks like a pretty solid statement - tough to see how anyone in their right mind would disagree, but I suppose we'll have to see.


----------



## GBL

BlackBetty said:


> wow, you could have looked 2 posts up to find that same info.


Maybe he was referring to this:


> "ACTION: Entry 64 :Motion granted. The petition for rehearing and/or rehearing en banc is due March 17, 2008. No further extensions of time should be anticipated."


----------



## GoHokies!

GBL said:


> Maybe he was referring to this:


There goes my "anyone in their right mind" theory. 

Another hearing in a month, then another untold period waiting for a decision, then more legal wrangling.

What a bunch of jackholes. I'll give them credit, they know how to play the game, at least. I guess when you're as sleazy as Dish is, you get good at these games. Too bad they can't use that same drive to stand on their own two feet and build a decent DVR on their own.


----------



## BlackBetty

GBL said:


> Maybe he was referring to this:


again already recently covered in this thread.
http://www.tivocommunity.com/tivo-vb/showthread.php?p=5980361#post5980361


----------



## SterlingS

GoHokies! said:


> Sorry, I'm not sure I'm going to buy that (not that my opinion matters). A little bit of the history of the posters I mentioned would be helpful and you fit the mold.
> 
> I never commented on the number of posts you have - not sure what that is relevant. Also, you'll note that I gave you the common courtesy of spelling your name correctly - something that you should try.
> 
> Granted I'm a little biased, but Tivo's filing looks like a pretty solid statement - tough to see how anyone in their right mind would disagree, but I suppose we'll have to see.


Hey, Hoakies -- Pound salt.
GO Mountaineers, GO Hurricanes, GO Cavaliers



BlackBetty said:


> Get over it. Keep working on your paypal donations. That $36 must have really set you back.


Come on dude, he did something good. Why you giving him a hard time.

--Thank you for taking the time to request, scan and post.

I'm out of here. Don't even bother responding.


----------



## BlackBetty

Daven said:


> Gee Whiz Black Betty the least you could have done is give Mainer_Ayah a little credit for getting and posting the documents.
> 
> --Mainer


I could have just said the Easter Bunny for that matter. Holds the same weight here at TCF. At least I wasn't trying to take credit for it as if it were my info. You'll get over it.


----------



## BlackBetty

SterlingS said:


> Don't even bother responding.


Ok I won't.....oh too late.


----------



## GBL

BlackBetty said:


> again already recently covered in this thread.
> http://www.tivocommunity.com/tivo-vb/showthread.php?p=5980361#post5980361


Sorry, I missed that post. (Too many off topic posts).


----------



## dorian

GBL said:


> Sorry, I missed that post. (Too many off topic posts).


I looked through the first page and the last page of this thread and didn't see anything eluding to the title of the topic. Its gonna take me a couple of weeks to figure out the format of this forum.


----------



## Curtis

dorian said:


> I looked through the first page and the last page of this thread and didn't see anything eluding to the title of the topic. Its gonna take me a couple of weeks to figure out the format of this forum.


Well, thanks for the announcement. Please keep us posted on your progress in understanding the way message boards work. It's really interesting. Also, you might want to look up "eluding".


----------



## Daven

I saw post #872 by SterlingS and the quote of your post. You must have gone back to ivillage and saw that I was asked to put up a paypal link, then out of guilt deleted your post. Like I said in my post, I wanted, and expected nothing.

And you, Betty are a real class act, aren't you?

--Mainer


----------



## gonzotek

Daven said:


> I saw post #872 by SterlingS and the quote of your post. You must have gone back to ivillage and saw that I was asked to put up a paypal link, then out of guilt deleted your post. Like I said in my post, I wanted, and expected nothing.
> 
> And you, Betty are a real class act, aren't you?
> 
> --Mainer


Please take this to PM. It is neither relevant to the topic nor relevant to TiVo in general.


----------



## classicX

Can someone summarize what's going on in the trial so far?

And why are there so many people with fewer than 10 posts in this thread suddenly?


----------



## GoHokies!

Dish lost the latest appeal, the courts ordered the stay preventing the injunction turning off Dish's DVRs removed.

Dish had 14 days to appeal for an "en banc" hearing (in front of all the judges, not just a 3 judge panel), they applied for and were granted an extension so that now they have until 17 March to file their appeal.

Presumably, while all of this legal wrangling is going on the stay remains in place and Dish's DVRs continue to operate.

The working "less than 10 posts" theory is that they're all the same guy/gal being disruptive, some people must have nothing better to do with their time. :rolleyes"


----------



## Daven

classicX said:


> Can someone summarize what's going on in the trial so far?
> 
> And why are there so many people with fewer than 10 posts in this thread suddenly?


I didn't know there was a line, of sorts, drawn at the 10 post level. Does that mean they have to sit at the back of the bus? Or us a different water fountain?

Hey! maybe I've discovered in you a new kind of scum, a "TechnoRacist" TR for short. One who is prejudiced against individuals with fewer than 10 posts. Or worse, perhaps you are really a UTR (UltraTechnoRacist). That would be one who is prejudiced against any individual that has fewr posts than himself. There are at least a few of them on this thread.

I find those with fewer posts have much more interesting things to say when they do post.

DaveN


----------



## Daven

gonzotek said:


> Please take this to PM. It is neither relevant to the topic nor relevant to TiVo in general.


I'm sorry, but you are wrong. My response to comments left on this board (especially those that question my dignity) are completely relevant. Your "take it to PM" comment should be directed to Betty, and the rest of you UTR's on this thread.

--DaveN


----------



## GoHokies!

Daven said:


> I find those with fewer posts have much more interesting things to say when they do post.





> I'm sorry, but you are wrong. My response to comments left on this board (especially those that question my dignity) are going to be responded to. Your take it to PM comment should be directed to Betty, and the rest of you UTR's on this thread.
> 
> --DaveN


I don't really care what you find interesting or your dignity.

I doubt that may others do too.

You can draw the line at any number of arbitrary posts or an arbitrary join date or whatever, the fact is that there are a handful of posters that continue to add noise, rather than substance to the discussion.

If you can explain to me what paypal links, your interests or what race has to do with this and stop dragging the thread off topic, I'll gladly exclude you from the group.


----------



## Daven

classicX said:


> Can someone summarize what's going on in the trial so far?
> 
> And why are there so many people with fewer than 10 posts in this thread suddenly?


WHY ARE SO MANY PEOPLE WITH FEWER THAN 4 YEARS ON THE BOARD IN THIS THREAD?

--DaveN


----------



## classicX

Is there a way to /ignore a specific user?


----------



## GoHokies!

Click on DaveN's name, go to his public profile.

At the top of the page there is a link to add him to your ignore list.

(posted vice PM'd as this may be of general use to others)


----------



## gonzotek

Daven said:


> I'm sorry, but you are wrong. My response to comments left on this board (especially those that question my dignity) are completely relevant. Your "take it to PM" comment should be directed to Betty, and the rest of you UTR's on this thread.
> 
> --DaveN


You are yelling, flaming, and disrespecting people(evidenced clearly in your post #885, which is your second reply to the post you're quoting and has zero to do with Echostar vs. TiVo). Whether or not _your_ dignity has been questioned, the forum rules do not allow these kinds of behaviors. If you have an issue with a member, there is recourse. You can deal with it in private, or ask a moderator to do it for you. You have provided some documents related to the case. That, and being duly acknowledged for having done so _was_ relevant to the the thread topic. I asked you, politely, to use PM for what it was intended for, private conversations. You responded by calling me a "UltraTechnoRacist". The irony of your attack on my quite simple and polite request should speak for itself.


----------



## ZeoTiVo

GoHokies! said:


> The working "less than 10 posts" theory is that they're all the same guy/gal being disruptive, some people must have nothing better to do with their time. :rolleyes"


I think the Yahoo stock troll went uder a bridge and found some more trolls or else enough keywords came up that this thread has hit their RSS feeds. *sigh*


----------



## classicX

GoHokies! said:


> Click on DaveN's name, go to his public profile.
> 
> At the top of the page there is a link to add him to your ignore list.
> 
> (posted vice PM'd as this may be of general use to others)


Thx - worked like a charm.


----------



## dorian

Part of the reason there are folks with less than 10 posts on this thread, and the entire board for that matter, is because Tivo's marketing efforts are having their desired impact and there are some noobs perusing to learn more about newly acquired products. Sometimes we can't help but post something. 

I do realize that most establised boards have their own set of "regulars" that feel threatened by the arrival of new personalities. I'll do my best from this point forward to only interact with other noobs (with my dictionary and thesaurus in hand) and thereby have a lesser impact on the established pecking order.


----------



## classicX

dorian said:


> Part of the reason there are folks with less than 10 posts on this thread, and the entire board for that matter, is because Tivo's marketing efforts are having their desired impact and there are some noobs perusing to learn more about newly acquired products. Sometimes we can't help but post something.
> 
> I do realize that most establised boards have their own set of "regulars" that feel threatened by the arrival of new personalities. I'll do my best from this point forward to only interact with other noobs (with my dictionary and thesaurus in hand) and thereby have a lesser impact on the established pecking order.


It's not that I feel threatened - I just happened to notice a sudden influx of users into this particular thread and wondered if there was an underlying reason (perhaps something in the news discussing the trial, for example).

It seems like most of the new users are reading too much into the question - it really was innocent. The purpose of these forums is to foster community and open discussion between people with similar interests - so to all of the new users, I say welcome!


----------



## ZeoTiVo

dorian said:


> I do realize that most establised boards have their own set of "regulars" that feel threatened by the arrival of new personalities.


Please, that is not the case here. The TiVo/DISH trial has brought out what is called stock trolls. One in particular was using multiple ids as earlier ones got banned. lookback at bobneth/netsurfer/sterlingS posts in particular. The troll has no desire for forum conversation but instead just wants to spam his viewpoint and flame others to cause arguments and so forth. That makes for a very combative thread where people who are familair with other posters already are not trying to post in full, complete detail of what they mean but rather type in terse, concise replies.

because of that influx of new users from the same person; all new users (defined here adhoc as those with less than 10 posts) fell under suspiscion. Obviously not everyone with under 10 posts is a troll bent on stirring things up.

*Legitimate new posters should not use this thread as indication of how the forum in general works. *


----------



## tv444

Daven said:


> I didn't know there was a line, of sorts, drawn at the 10 post level. Does that mean they have to sit at the back of the bus? Or use a different water fountain?


I guess that some people with thousands of posts feel that they own the board, since they spend huge amounts of time on it.


----------



## GoHokies!

Dorian,

I'll echo what the two posters above said - please feel free to join the discussion! A quick glance over your other posts clearly shows that you're actually a "real person" that's interested in adding to the conversation, not the type of disruptive troll that was discussed earlier.

Plus, now that you have 12 posts, you're no longer counted in that group, you're "one of us"


----------



## GoHokies!

tv444 said:


> I guess that some people with thousands of posts feel that they own the board, since they spend huge amounts of time on it.


Please point out where any of us have stated anything of the such.

We've clearly articulated where the problem lies, and it has nothing to do with "ownership" of anything. Excuse us for wanting to have an on-topic, informed discussion without distractions such as this one.


----------



## tv444

So what do we expect to happen on March 17?


----------



## tv444

GoHokies! said:


> Please point out where any of us have stated anything of the such.
> 
> We've clearly articulated where the problem lies, and it has nothing to do with "ownership" of anything. Excuse us for wanting to have an on-topic, informed discussion without distractions such as this one.


Not looking for an argument. Just threw in my two cents. Been reading the board for quite a while and recently signed up for posting. But during my reading I have noticed that there are some very hostile people here with very high post counts.

Now, does anyone know exactly what March 17 is supposed to mean? Is it time for a new appeal?


----------



## CuriousMark

tv444 said:


> So what do we expect to happen on March 17?


Echostar will file their motion, TiVo will get a chance to respond, maybe E* will get a response to the response and it will sit and wait for the judges to look at it and decide whether to grant the motion for a rehearing or en banc rehearing or not. How long that will take has been guessed at as being around another month. At that point the court will have their say and depending on what they say different things can happen.


----------



## ZeoTiVo

tv444 said:


> Not looking for an argument.
> 
> ... But during my reading I have noticed that there are some very hostile people here with very high post counts.


and how exactly is posting something like that NOT looking for an argument?

Do you think that the postings by Bobneth or Netsurfer are not designed solely to disrupt the thread via spamming a viewpoint that has been discredited by many as trollish behavior?


----------



## tv444

CuriousMark said:


> Echostar will file their motion, TiVo will get a chance to respond, maybe E* will get a response to the response and it will sit and wait for the judges to look at it and decide whether to grant the motion for a rehearing or en bank rehearing or not. How long that will take has been guessed at as being around another month. At that point the court will have their say and depending on what they say different things can happen.


Thanks for your response. I guess I am trying to figure out what the purpose for that is, since Dish lost the first trial and the appeal.


----------



## dorian

CuriousMark said:


> Echostar will file their motion, TiVo will get a chance to respond, maybe E* will get a response to the response and it will sit and wait for the judges to look at it and decide whether to grant the motion for a rehearing or en bank rehearing or not. How long that will take has been guessed at as being around another month. At that point the court will have their say and depending on what they say different things can happen.


Thanks for the summation. In your opinion (stretching into the realm of speculation, but what the heck) what are the different things that can happen, and what do you think the gambling person should pick will happen.


----------



## CuriousMark

tv444 said:


> Thanks for your response. I guess I am trying to figure out what the purpose for that is, since Dish lost the first trial and the appeal.


Due Process. It is the way the system works.

If you read above you will see that all I did was summarize posts from experts. It can be hard to find those with all the off topic back and forth going on. I would prefer that those conversations got taken elsewhere, like PM so that the meaningful news posts were not buried in noise. I doubt I will get my wish.

Dish is requesting a re-hearing or re-hearing en banc which is their right. Only when that is completed will the appeal be finalized. Watching the court system is sometimes like watching paint dry. It is what it is, and we can't do much of anything to speed it up.


----------



## CuriousMark

dorian said:


> Thanks for the summation. In your opinion (stretching into the realm of speculation, but what the heck) what are the different things that can happen, and what do you think the gambling person should pick will happen.


That question belongs at a $tock talk forum and not here. This forum deliberately discourages that since it only leads to a mess. You will get good answers to that at IV, Fool, or Yahoo!

Look for posts at one of those forums by ques. He has laid it out in detail.

P.S. Describing what could happen is OK. But speculating on betting positions is completely unwanted here.


----------



## tv444

CuriousMark said:


> Dish is requesting a re-hearing or re-hearing en bank (sp?) which is their right. Only when that is completed will the appeal be finalized. Watching the court system is sometimes like watching paint dry. It is what it is, and we can't do much of anything to speed it up.


Is this rehearing process something that happens by March 17 or by rehearing do you mean a long drawn out THIRD trial? I understand that you may not have all the answers and that you encouraged me to reread the forum but that is 900+ posts. Just thought maybe someone could cut to the point.


----------



## justapixel

From this point forward, there will be no personal attacks, name-calling, stock discussion or any other rules broken in this thread.

It is too large for me to go through and remove every instance. I also do not want to have to close the thread since it seems to be a topic of interest. However, if ONE post past mine has a flame in it, then I will shut this topic down.

Forum rules are here: http://www.tivocommunity.com/tivo-vb/showthread.php?t=127146


----------



## GoHokies!

tv444 said:


> Not looking for an argument.


No worries - seeing Zeo's post, I'm glad that I'm not the only one to take your post that way.

There certainly is a lot of hostility on both sides, I don't think that there's any correlation between post count and quality of posts at all.

Now that we've all agreed that we can get along, () IF the request for a rehearing "en banc" is accepted, the same appeals hearing that was before the 3 judge panel will be done again before the entire bench. Then, another long wait while the judges form a decision and get it written up and presented. If the appeal is denied (again) we'll be right were we are now. If the appeal is accepted, then we could go many different ways, depending on what the judges have to say.

Since the merits of the case are unlikely to change, I wouldn't expect a drastically different outcome if the court agrees to a rehearing.


----------



## ZeoTiVo

thank you Justapixel :up:


----------



## tv444

GoHokies! said:


> No worries - seeing Zeo's post, I'm glad that I'm not the only one to take your post that way.
> 
> There certainly is a lot of hostility on both sides, I don't think that there's any correlation between post count and quality of posts at all.
> 
> Now that we've all agreed that we can get along, () IF the request for a rehearing "en banc" is accepted, the same appeals hearing that was before the 3 judge panel will be done again before the entire bench. Then, another long wait while the judges form a decision and get it written up and presented. If the appeal is denied (again) we'll be right were we are now. If the appeal is accepted, then we could go many different ways, depending on what the judges have to say.
> 
> Since the merits of the case are unlikely to change, I wouldn't expect a drastically different outcome if the court agrees to a rehearing.


Sounds like we just need to be more patient and accept that we have to wait longer to see what happens. I think this long wait is driving many people crazy but there is nothing to do but wait some more.


----------



## Daven

Recently, I went through some of the federal district appeals cases where a re-hearing or re-hearing en banc was requested. The quickest decision I saw came in 1 month, and the request was denied. (Many decisions took 5 to 6 months). As a matter of fact, I tried to find a case that was granted re-hearing, I'm sure they exist but I couldn't find one. I've read (on other boards, so consider the source) that only aboout 1&#37;-2% these requests are granted. The criteria for granting these requests, apparently, is that a fundemental misunderstanding of the facts in the case, or ignoring evidence that was presented in the case by the appelate judges has to be shown in the request. 

Personaly, I feel that the judges will act swiftly to deny the rehearing, and mandate the results of the appeal. So late April to early May is probably the time this whole thing goes back to Texas, and the injunction is effected. With luck, Judge Folsom will lop some time off the 30 days that were in the original injuction for E* to shut down the DVR functionality on the infringing devices. Of course E* will claim they no longer infringe, the court will rule that fact has to be proven in subsequent proceedings. E* will ask for a stay of the injunction. In my opinion, They won't find a judge anywhere that will back them n that (including the Supreme Court). That is when Ergen et al will finally realize that a settlement is the only way out, if that is, TiVo has any inclination to do a deal

JMO
DaveN


----------



## GoHokies!

Daven said:


> Personaly, I feel that the judges will act swiftly to deny the rehearing, and mandate the results of the appeal.


I wish that I could agree. It's certainly a logical opinion, and a correct one, but if the judges intended to deny the rehearing, why grant the extension instead of just denying the rehearing now?


----------



## dorian

CuriousMark said:


> That question belongs at a $tock talk forum and not here. This forum deliberately discourages that since it only leads to a mess. You will get good answers to that at IV, Fool, or Yahoo!
> 
> Look for posts at one of those forums by ques. He has laid it out in detail.
> 
> P.S. Describing what could happen is OK. But speculating on betting positions is completely unwanted here.


My apologies to you and the entire forum. I finally took the time to read through this entire thread and a couple others on a similar topic (EchoStar vs Tivo) and now can see where folks are getting pretty passionate about it all. Its like watching football fans discuss the merits of the Patriots vs the Colts, cell phone phanatics discuss Verizon vs AT&T, or the digitari discussing Apple versus Wintel.... rational discussion is tough to maintain. I'll never quite understand why anti-X folks go to the X forum to raise Cain, and therefore I never recognize it until its too late.

Back to Tivo tech tips for me. Again, I apoligize for the uninformed distraction.


----------



## Daven

"I wish that I could agree. It's certainly a logical opinion, and a correct one, but if the judges intended to deny the rehearing, why grant the extension instead of just denying the rehearing now? "


First, they would not have just denied the rehearing, they would have denied the extension for E* to request a rehearing. Leaving E* with an extremely short time frame to prepare their request.

Secondly, E*'s request for an extension to the time to request a rehearing was based soley on the scheduling conflicts of the attorneys. Courts will typically view this as a real problem, especially when the level of detail that was presented as to the conflicts is included. Scheduling conflicts are something the courts deal with every day, and they are likely to be sympathetic, at least once, to this type of request. I think in the granting of the extension the court was clear that it expected no subsequent delays.

DaveN


----------



## Curtis

GoHokies! said:


> I wish that I could agree. It's certainly a logical opinion, and a correct one, but if the judges intended to deny the rehearing, why grant the extension instead of just denying the rehearing now?


Because the judges haven't seen Dish's rationale for requesting a rehearing yet. Dish hasn't submitted it yet. In my opinion though, Dish won't have a good enough reason for the rehearing and it will be denied.


----------



## dswallow

justapixel said:


> From this point forward, there will be no personal attacks, name-calling, stock discussion or any other rules broken in this thread.
> 
> It is too large for me to go through and remove every instance. I also do not want to have to close the thread since it seems to be a topic of interest. However, if ONE post past mine has a flame in it, then I will shut this topic down.
> 
> Forum rules are here: http://www.tivocommunity.com/tivo-vb/showthread.php?t=127146












How about we have a candlelight vigil outside the courthouse?


----------



## CuriousMark

dorian said:


> Back to Tivo tech tips for me. Again, I apoligize for the uninformed distraction.


Now that you understand please stick around and add your knowledge to ours. We may not be handicapping the team, but we are all interested in every little detail.


----------



## usnret

Does the money total continue to mount (i.e. some sort of interest)?? Or does it just revert back to the original amount from the initial trial when all of this is final over??


----------



## ZeoTiVo

usnret said:


> Does the money total continue to mount (i.e. some sort of interest)?? Or does it just revert back to the original amount from the initial trial when all of this is final over??


the ruling found that it was x dollars per day of service, so yes the money does pile up along with interest on that money. It will cost DISH a lot more to fiddle through the court system than to just settle with TiVo, especially since DISH has lost at every turn.


----------



## AJRitz

usnret said:


> Does the money total continue to mount (i.e. some sort of interest)?? Or does it just revert back to the original amount from the initial trial when all of this is final over??


Fines continue to accrue, unless there's a specific order from the court staying execution of judgment.


----------



## Curtis

usnret said:


> Does the money total continue to mount (i.e. some sort of interest)?? Or does it just revert back to the original amount from the initial trial when all of this is final over??


"If the verdict is upheld on appeal, we would be required to pay additional amounts from August 1, 2006 until such time, if ever, as we successfully implement alternative technology. Those amounts would be approximately $5.7 million, $5.9 million and $6.0 million for August, September and October 2006, respectively, and would increase each month as the number of our DVR customers increases and as interest compounds."

The total amount with continued infringement and interest is up to $200 million.


----------



## steve614

tv444 said:


> Sounds like we just need to be more patient and accept that we have to wait longer to see what happens. I think this long wait is driving many people crazy but there is nothing to do but wait some more.


Yes. We'll probably be into part 2 of this thread before something _actually_ happens. 

Justice.


----------



## ZeoTiVo

steve614 said:


> Yes. We'll probably be into part 2 of this thread before something _actually_ happens.
> 
> Justice.


actually it will be part 3 as the first thread hit 1000 and this one is now very close* thanks to all the static that hit recently.

*should probably start a new one now to cover what comes after enbanc hearing is denied. any takers


----------



## tv444

GoHokies! said:


> I wish that I could agree. It's certainly a logical opinion, and a correct one, but if the judges intended to deny the rehearing, why grant the extension instead of just denying the rehearing now?


Just because denying the rehearing is the most likely outcome, it does not mean they know yet what they will do. Judges are very busy people and these things take time. I imagine they have thousands of pages of court transcripts to review. You can only read so many pages per day. So the judges do not know what they themselves will do until they have had time to ponder what they will do.


----------



## Curtis

tv444 said:


> Just because denying the rehearing is the most likely outcome, it does not mean they know yet what they will do. Judges are very busy people and these things take time. I imagine they have thousands of pages of court transcripts to review. You can only read so many pages per day. So the judges do not know what they themselves will do until they have had time to ponder what they will do.


They don't have anything to ponder yet.


----------



## tv444

Curtis said:


> In my opinion though, Dish won't have a good enough reason for the rehearing and it will be denied.


I agree. Even without knowing all the facts, that makes sense. First, the judge constantly monitors the trial to make sure everyone has time to present their case. Second, the appeal court did the same. Third, the judges know that a third hearing is a waste of time because of the results of the first two cases. It is not like Dish won one and Tivo won one, Tivo won them both.

Second, if that other poster is correct about 1-2 percent of cases getting a rehearing, then that proves that during trials, judges make sure time is not wasted by conducting a trial that will likely be grated a rehearing. They want to do it right the first time. After all, these things take months and years, who in their right mind wants to do them all over again, so they get it right the first time.

In my opinion, Tivo has a big pay day right around the corner and Dish will have to shut down the devices.


----------



## PPC1

tv444 said:


> Thanks for your response. I guess I am trying to figure out what the purpose for that is, since Dish lost the first trial and the appeal.


Any particular court of appeals circuit is comprised of many, many judges-- far more than the typcial three judge panel. For certain issues, the court may think it is important enough to get the entire court panel to decide the issue. Also, if the three judge panel issues a decision that is in conflict with prior holdings of the circuit (probably issued by a different three judge panel) or of the U.S. Supreme Court, then an en banc rehearing may be granted to straighten out the situation. Rehearing by the same panel can also be requested. The reason for doing so may be a delay tactic, or they may really think they have legitimate arguments. Its another chance to reverse the proceedings. It is unlikely that the Supreme Court would grant certiorari, so its possible that such a petition is their last shot before they have to pay a judgment.


----------



## tv444

Curtis said:


> They don't have anything to ponder yet.


True, just think, in about another four weeks they can begin pondering. Thus far, it looks like the most likely penalty has accrued to 200-210 million. What a lovely spring it is going to be for Tivo.


----------



## PPC1

tv444 said:


> Second, if that other poster is correct about 1-2 percent of cases getting a rehearing, then that proves that during trials, judges make sure time is not wasted by conducting a trial that will likely be grated a rehearing. They want to do it right the first time. After all, these things take months and years, who in their right mind wants to do them all over again, so they get it right the first time.


Bear in mind the petition for re-hearing is to have the same court of appeals change its prior opinion. Thus it is not surprising that only 1-2 percent of such petitions are successful. The Court of Appeals doesn't like to reverse itself, or waste time on an issue that it has already resolved once. There must be a really good reason to do so.


----------



## PPC1

Curtis said:


> Because the judges haven't seen Dish's rationale for requesting a rehearing yet.


Excactly. Besides, its likely that the motion to extend the time to file the brief will be resolved by a motions panel rather than the panel that will decide the merits.


----------



## ZeoTiVo

PPC1 said:


> Excactly. Besides, its likely that the motion to extend the time to file the brief will be resolved by a motions panel rather than the panel that will decide the merits.


I am guessing a bunch of law clerks for the two sides looked at the calendars involved  Then the brief will be written up, presented and some more law clerks will read it and summarize it for the Judges involved. My guess is it will be a one word summary in this specific case


----------



## timckelley

What happens if Dish just refuses to pay?


----------



## tv444

timckelley said:


> What happens if Dish just refuses to pay?


Dish currently has 2.8 billion in cash. Seems to me that the courts could freeze their accounts until the 200 million is paid. Cut off access to a companies cash and suddenly they are very eager to pay up.


----------



## BlackBetty

timckelley said:


> What happens if Dish just refuses to pay?


Courts could add post-trial willfulness, and add Treble damanges. basically it would triple that amount owed by Dish. Ergen is bull headed, but I don't think he is stupid. Only time will tell.


----------



## gonzotek

timckelley said:


> What happens if Dish just refuses to pay?


US prepares to down spy satellite

Contingency plans are already being drawn up.


----------



## timckelley

BlackBetty said:


> Ergen is bull headed, but I don't think he is stupid. Only time will tell.


Let's hope that he's stupid as well.


----------



## Daven

tv444 said:


> Just because denying the rehearing is the most likely outcome, it does not mean they know yet what they will do. Judges are very busy people and these things take time. I imagine they have thousands of pages of court transcripts to review. You can only read so many pages per day. So the judges do not know what they themselves will do until they have had time to ponder what they will do.


The last step E* has with this court is a rehearing. If it is denied, the court finalizes its ruling and the case is remanded back to texas with the injunction in effect.

DaveN


----------



## Curtis

Daven said:


> The last step E* has with this court is a rehearing. If it is denied, the court finalizes its ruling and the case is remanded back to texas with the injunction in effect.
> 
> DaveN


Not really.

"(A) A party may move to stay the mandate pending 
the filing of a petition for a writ of certiorari 
in the Supreme Court. The motion must be 
served on all parties and must show that the 
certiorari petition would present a substantial 
question and that there is good cause for a 
stay. "


----------



## shady

gonzotek said:


> US prepares to down spy satellite
> 
> Contingency plans are already being drawn up.


That's the funniest thing I've read all day.


----------



## Daven

Curtis said:


> Not really.
> 
> "(A) A party may move to stay the mandate pending
> the filing of a petition for a writ of certiorari
> in the Supreme Court. The motion must be
> served on all parties and must show that the
> certiorari petition would present a substantial
> question and that there is good cause for a
> stay. "


That is where I was coming from in refering to the rehearing as the last step with this court. FIling a petition to the Supreme Court for a review of the case would be the next step. Highly unlikely that the Supremes would have anything to do with this case. The motion to stay the mandate cannot happen unless the petition to the Supremes happens. I also think the likliehood of a stay being granted while the SC decides to not review the case is practically non-existant.

JMO

DaveN


----------



## Curtis

Daven said:


> That is where I was coming from in refering to the rehearing as the last step with this court. FIling a petition to the Supreme Court for a review of the case would be the next step. Highly unlikely that the Supremes would have anything to do with this case. The motion to stay the mandate cannot happen unless the petition to the Supremes happens. I also think the likliehood of a stay being granted while the SC decides to not review the case is practically non-existant.


No. The request to stay the mandate would be filed with the appeals court. This would be after the rehearing gets sorted out. The rehearing would not be the last step with the appeals court.


----------



## Daven

Curtis said:


> No. The request to stay the mandate would be filed with the appeals court. This would be after the rehearing gets sorted out. The rehearing would not be the last step with the appeals court.


After the rehearing is denied, The request to the appeals court for a stay (fat chance of approval there) can only happen in conjunction with a petition to the Supreme Court to review the case. No petition to the Supremes, no request to stay the mandate. So, technically, yes the request for a stay of the mandate is the last thing that would be submitted to the US Court of Appeals, but you could liken it to stepping off a dock to get on a boat. If the boat isn't there (the petition to the Supremes) you don't step off the dock (the request for the stay). And even if the boat is there and you take the step, it is a matter of course.

DaveN


----------



## ZeoTiVo

justapixel said:


> From this point forward, there will be no personal attacks, name-calling, stock discussion or any other rules broken in this thread.
> 
> It is too large for me to go through and remove every instance. I also do not want to have to close the thread since it seems to be a topic of interest. However, if ONE post past mine has a flame in it, then I will shut this topic down.
> 
> Forum rules are here: http://www.tivocommunity.com/tivo-vb/showthread.php?t=127146


For those that may not have seen this recent post


----------



## Adam1115

Oh dear god. Not MORE new user ID's.... Is there more than 2 actual people posting in this thread?


----------



## herdfan

timckelley said:


> What happens if Dish just refuses to pay?


I think DISH was required to post a substantial bond ($75M??) with their appeal. So if TiVo is declared the eventual winner, the court will just turn that money over to TiVo.

I think that's how it works.


----------



## RoyK

ZeoTiVo said:


> and how exactly is posting something like that NOT looking for an argument?
> 
> Do you think that the postings by Bobneth or Netsurfer are not designed solely to disrupt the thread via spamming a viewpoint that has been discredited by many as trollish behavior?


I'm 99.9% convinced that ty444 IS netsurfer AKA Bobneth AKA who knows.


----------



## ZeoTiVo

RoyK said:


> I'm 99.9% convinced that ty444 IS netsurfer AKA Bobneth AKA who knows.


yep. I was pretty sure I would not get a straight answer to my question 
still there are legitimate newcomers in this thread now so the who knows is not as clear.


----------



## RoyK

ZeoTiVo said:


> yep. I was pretty sure I would not get a straight answer to my question
> still there are legitimate newcomers in this thread now so the who knows is not as clear.


He's currently playing in this thread - last few days starting about here:

http://www.tivocommunity.com/tivo-vb/showthread.php?p=6014161#post6014161


----------



## KoG

tv444 said:


> True, just think, in about another four weeks they can begin pondering. Thus far, it looks like the most likely penalty has accrued to 200-210 million. What a lovely spring it is going to be for Tivo.


I have a feeling it's going to take much longer than that for Tivo to get their payday. There is still another level of appeals that Dish can try for and that is the Supreme Court. Though I doubt the Supreme Court will be willing to hear this case it will allow them to drag this case out longer and longer. After the Supreme Court rejects the appeal then it's back to Texas where Dish will start arguing that they've changed the software are no long infringing and therefore should not have to pay the full amount that's been accruing all this time. Ain't justice grand?


----------



## Daven

KoG said:


> I have a feeling it's going to take much longer than that for Tivo to get their payday. There is still another level of appeals that Dish can try for and that is the Supreme Court. Though I doubt the Supreme Court will be willing to hear this case it will allow them to drag this case out longer and longer. After the Supreme Court rejects the appeal then it's back to Texas where Dish will start arguing that they've changed the software are no long infringing and therefore should not have to pay the full amount that's been accruing all this time. Ain't justice grand?


This is true, but if Echostar fails to get the injunction stayed while they await a decision from the SC on whether they will hear the case, Mr Ergen et al are going to be in a world of hurt. I'd say it all hinges on when the stay on the injunction is lifted. That will be when the court of appeals issues their mandate. After going thru a jury and an appeals court and still being found to be infringing, I think E* will be hard pressed to get another stay.

DaveN


----------



## Curtis

From Dish in SEC filing:

"On January 31, 2008, the U.S. Court of Appeals for the Federal Circuit affirmed in part and reversed in part the April 2006 jury verdict concluding that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. In its decision, the Federal Circuit affirmed the jurys verdict of infringement on Tivos software claims, upheld the award of damages from the district court, and ordered that the stay of the district courts injunction against us, which was issued pending appeal, will dissolve when the appeal becomes final. The Federal Circuit, however, found that we did not literally infringe Tivos hardware claims, and remanded such claims back to the district court for further proceedings. We are appealing the Federal Circuits ruling.

In addition, we have developed and deployed next-generation DVR software to our customers DVRs. This improved software is fully operational and has been automatically downloaded to current customers (the Design-Around). We have formal legal opinions from outside counsel that conclude that our Design-Around does not infringe, literally or under the doctrine of equivalents, either the hardware or software claims of Tivos patent.


In accordance with Statement of Financial Accounting Standards No. 5, Accounting for Contingencies (SFAS 5), we recorded a total reserve of $128 million in Litigation expense on our Consolidated Balance Sheets to reflect the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. This amount also includes the estimated cost of any software infringement prior to the Design-Around, plus interest subsequent to the jury verdict.

If the Federal Circuits decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense. If we are unsuccessful in subsequent appeals or in defending against claims that the Design-Around infringes Tivos patent, we could be prohibited from distributing DVRs, or be required to modify or eliminate certain user-friendly DVR features that we currently offer to consumers. In that event we would be at a significant disadvantage to our competitors who could offer this functionality and, while we would attempt to provide that functionality through other manufacturers, the adverse affect on our business could be material. We could also have to pay substantial additional damages."


----------



## timckelley

Curtis said:


> If the Federal Circuits decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense.


I'd be interested to know if TiVo will so challenge.


----------



## Curtis

Curtis said:


> From Dish in SEC filing:
> 
> "If the Federal Circuit's decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense. "





timckelley said:


> I'd be interested to know if TiVo will so challenge.


I can't understand why Dish doesn't think they will be the ones on the defense considering that they will have 4 million disabled DVRs after the injunction stay is removed.


----------



## timckelley

Curtis said:


> We have formal legal opinions from outside counsel that conclude that our Design-Around does not infringe, literally or under the doctrine of equivalents, either the hardware or software claims of Tivos patent.


This makes it sound like they don't intend to disable the 'designed around' DVRs, even after the injuction stay dissolves.


----------



## Curtis

timckelley said:


> This makes it sound like they don't intend to disable the 'designed around' DVRs, even after the injuction stay dissolves.


Well, they *never* thought their DVRs infringed. I think they are just trying to prevent treble damages. The injunction is clear about what they have to do. There is nothing in the injunction that gives Dish a choice:

_"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.

Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."_


----------



## BobCamp1

Curtis said:


> I can't understand why Dish doesn't think they will be the ones on the defense considering that they will have 4 million disabled DVRs after the injunction stay is removed.


Because the judge should extend the stay on the injunction while this is being challenged. There is no need to have an injunction if the DVRs are no longer infringing. The appellate court hasn't even ruled on that yet -- they only ruled that the software at the time the lawsuit was originally filed was infringing. If Dish is correct, and the software and hardware are no longer (or not found to be) infringing, the injunction will eventually disappear and then it's simply about exactly how much money should change hands (when did they stop infringing, and how much additional damage was done between the original verdict and the software download, plus interest accumulated).

The hardware is the unknown wildcard. Actually, this is the issue that the Supremes may eventually look at if this thing isn't settled. Companies are often accused of double-dipping -- that is, they collect royalties from the chip vendor and then attempt to collect more royalties from the companies who use the chip. In this case, one could argue that Tivo is suing the wrong hardware company. If you buy something that's commercially available, you assume that any royalties or licensing agreements are already in place. Of course, if E* told them to make it that way, one could argue that shifts the responsibility back to E*. If the chip has more than one use, this definitely shifts the burden back to E*. This Supreme Court seems interested in patent law, and this issue has never really been resolved in the courts.

I still think this will be settled before then, even though both sides seem to be very stubborn at the moment.


----------



## Curtis

BobCamp1 said:


> Because the judge should extend the stay on the injunction while this is being challenged.


If the injunction is stayed while Dish attempts to prove their latest software doesn't infringe, what's to prevent the process from being repeated again and again after each Dish loss? At some point the judge has to say "that's enough". Judge Folsom was against the existing stay. He turned down the stay request but was overridden by the appeals court. I can't foresee him approving a new stay request.


----------



## kmill14

Curtis said:


> . I can't foresee him approving a new stay request.


Of course you aren't the judge, and so your ability to foresee what he will actually do is limited.


----------



## BobCamp1

An injunction is seen as "going nuclear". It's the last resort. Once it's done, the damage is usually far reaching and irreversible. Small companies go out of business. Larger companies fall woefully behind in technology and can no longer compete. Or one company is forced into a severely lopsided agreement with the other. In any event, it effectively nullifies the right to the appeals process. That's why even if Judge Folsom doesn't grant a temporary stay, the appeals court that has the case will grant one while the process is still pending.

Having said that, sometimes the only way to force a settlement is to issue an injunction and hope it never actually takes effect.


----------



## timckelley

BobCamp1 said:


> Larger companies fall woefully behind in technology and can no longer compete. Or one company is forced into a severely lopsided agreement with the other.


But in the case of Echostar, this would be a good thing. Maybe they never deserved the profitability they've enjoyed these last several years at TiVo's expense.


----------



## Greg Bimson

BobCamp1 said:


> That's why even if Judge Folsom doesn't grant a temporary stay, the appeals court that has the case will grant one while the process is still pending.
> 
> Having said that, sometimes the only way to force a settlement is to issue an injunction and hope it never actually takes effect.


Well, you've hit a couple of nails on the head, here.

The Appeals Court has decided the stay of the injunction will be removed once the case is remanded back to District Court. So, when it comes time for new statements to be issued in court, Dish Network will state they no longer infringe, and will need the District Court and Judge Folsom to revoke the injunction. That will open up all cans of worms. And if nothing goes Echostar's way, what do they do, but simply appeal to the same Court of Appeals that told the judge the stay on the current injunction is lifted?

I think Judge Folsom will be very careful to respect court rules and then rule, once the case has been returned from the Court of Appeals.


----------



## samo

timckelley said:


> But in the case of Echostar, this would be a good thing. Maybe they never deserved the profitability they've enjoyed these last several years at TiVo's expense.


Give me a break Tim. Had Dish paid $1 a month per DVR to TiVo like DTV did for all these years, it wouldn't even made a dent in E* profitability. It wouldn't make TiVo profitable either because of stupid management team TiVo has and completely incompetent marketing department.
The fact is that TiVo loses subscribers while everybody else is gaining. TiVo has good product (not the best anymore, but still good enough) but TiVo marketing can not sell water to the traveler stranded in a desert.


----------



## bkdtv

samo said:


> Give me a break Tim. Had Dish paid $1 a month per DVR to TiVo like DTV did for all these years, it wouldn't even made a dent in E* profitability. It wouldn't make TiVo profitable either because of stupid management team TiVo has and completely incompetent marketing department.
> The fact is that TiVo loses subscribers while everybody else is gaining. TiVo has good product (not the best anymore, but still good enough) but TiVo marketing can not sell water to the traveler stranded in a desert.


Just one comment on this:

One benefit of the DirecTV and Comcast deals was that those companies paid for the software R&D. Comcast is paying TiVo millions of dollars that it is using to improve upon its software, reducing the amount of its own money that it must spend on software R&D. Eventually, some of those efforts should make their way to standalone boxes.


----------



## HPD

samo said:


> It wouldn't make TiVo profitable either because of stupid management team TiVo has and completely incompetent marketing department. TiVo loses subscribers while everybody else is gaining. TiVo has good product but TiVo marketing can not sell water to the traveler stranded in a desert.


There is nothing stupid about Tivo's management team. Tivo will become profitable. The only reason they have not so far, is because satellite and cable tv companies are stealing Tivo's patents. Once Dish Network is forced to pay or shut down their DVR's it is a whole new ball game, as Tivo will then be able to successfully sue other companies.


----------



## Phantom Gremlin

HPD said:


> There is nothing stupid about Tivo's management team.


You're right. Calling TiVo's management team "stupid" would be a disservice to merely mediocre management teams.[*]

TiVo's management is far beyond stupid, they're the quintessence of of stupidity. These bozos are three sigmas out on the stupidity curve. It's hard to imagine a more inept group. These clowns have managed to achieve retained earnings of -741 million dollars. (Another phrase for negative retained earnings is accumulated deficit.)

And no, other companies "stealing" TiVo's IP is *not* the biggest reason for why that has happened.

[*]apologies to Dennis Miller


----------



## herdfan

Curtis said:


> If the injunction is stayed while Dish attempts to prove their latest software doesn't infringe, what's to prevent the process from being repeated again and again after each Dish loss?


Because the damages keep mounting. Let's say E* convinces the judge to have a hearing on whether or not the new software infringes, the judge could force E* to pay damages up to date and post a bond for possible future damages if E* loses again.

At some point, it will be cheaper to settle with TiVo that to keep paying damages while trying to prove they no longer infringe.


----------



## HPD

Phantom Gremlin said:


> You're right. Calling TiVo's management team "stupid" would be a disservice to merely mediocre management teams.[*]
> 
> TiVo's management is far beyond stupid, they're the quintessence of of stupidity. These bozos are three sigmas out on the stupidity curve. It's hard to imagine a more inept group. These clowns have managed to achieve retained earnings of -741 million dollars. (Another phrase for negative retained earnings is accumulated deficit.)
> 
> And no, other companies "stealing" TiVo's IP is *not* the biggest reason for why that has happened.


Tivo came out with a brilliant product. So brilliant in fact, that every cable TV and satellite TV provider decided to copy the idea. If Tivo had known that there were so many corrupt companies out there then they probably would not have bothered to invent their brilliant product. But now the tables are turning and the thiefs will soon be the ones getting hurt. As for your first paragraph, I will not respond to absurd ideas.


----------



## HPD

herdfan said:


> Because the damages keep mounting. Let's say E* convinces the judge to have a hearing on whether or not the new software infringes, the judge could force E* to pay damages up to date and post a bond for possible future damages if E* loses again.
> 
> At some point, it will be cheaper to settle with TiVo that to keep paying damages while trying to prove they no longer infringe.


The meter continues to tick. I bet Tivo loves that. Bigger dollar signs in their eyes. Rack em up.


----------



## herdfan

HPD said:


> If Tivo had known that there were so many corrupt companies out there then they probably would not have bothered to invent their brilliant product.


Actually, had they known, they might not have wasted money actually producing a product and just sued other companies for infringement.


----------



## Curtis

herdfan said:


> Because the damages keep mounting. Let's say E* convinces the judge to have a hearing on whether or not the new software infringes, the judge could force E* to pay damages up to date and post a bond for possible future damages if E* loses again.
> 
> At some point, it will be cheaper to settle with TiVo that to keep paying damages while trying to prove they no longer infringe.


I don't think there is such a thing as future damages.


----------



## herdfan

Curtis said:


> I don't think there is such a thing as future damages.


Sure there are. Maybe not in a legal sense, but if the product continues to infringe, then any damages accruing on a daily basis will continue to accrue in the future until the products no longer infringe. Did that make more sense?


----------



## Curtis

herdfan said:


> Sure there are. Maybe not in a legal sense, but if the product continues to infringe, then any damages accruing on a daily basis will continue to accrue in the future until the products no longer infringe. Did that make more sense?


Judge Folsom has said that TiVo is undergoing irreparable harm. It doesn't make sense to allow irreparable harm to continue. The only thing that makes sense is to stop it.

Judge Folsom:

"Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff  Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiffs DVRs. The availability of the infringing products leads to loss of market share for Plaintiffs products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm  Plaintiff is losing market share at a critical time in the markets development, market share that it will not have the same opportunity to capture once the market matures."


----------



## HPD

Curtis said:


> Judge Folsom has said that TiVo is undergoing irreparable harm. It doesn't make sense to allow irreparable harm to continue. The only thing that makes sense is to stop it.
> 
> Judge Folsom:
> 
> "Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff  Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiffs DVRs. The availability of the infringing products leads to loss of market share for Plaintiffs products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm  Plaintiff is losing market share at a critical time in the markets development, market share that it will not have the same opportunity to capture once the market matures."


Wake um hard judge, real hard. Pretty please. Make Dish bleed badly.


----------



## ciper

Curtis said:


> Judge Folsom has said that TiVo is undergoing irreparable harm. It doesn't make sense to allow irreparable harm to continue. The only thing that makes sense is to stop it.
> 
> Judge Folsom:
> 
> "Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff  Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiffs DVRs. The availability of the infringing products leads to loss of market share for Plaintiffs products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm  Plaintiff is losing market share at a critical time in the markets development, market share that it will not have the same opportunity to capture once the market matures."


I'm impressed to hear a judge with a great understanding of the market. If Tivo is victorious I wonder what other repercussions will result?


----------



## RoyK

Curtis said:


> Judge Folsom has said that TiVo is undergoing irreparable harm. It doesn't make sense to allow irreparable harm to continue. The only thing that makes sense is to stop it.
> 
> Judge Folsom:
> 
> "Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. *Defendants compete directly with Plaintiff* - Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiff's DVRs. The availability of the infringing products leads to loss of market share for Plaintiff's products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm - Plaintiff is losing market share at a critical time in the market's development, market share that it will not have the same opportunity to capture once the market matures."


Do they? What product does TiVo have that records high definition from satellites?


----------



## HPD

RoyK said:


> Do they? What product does TiVo have that records high definition from satellites?


None, because both Dish and DirecTv decided to steal Tivo technology instead of licensing it, along with every other cable company in the country.


----------



## GoHokies!

Welcome back netsurfer!



RoyK said:


> Do they? What product does TiVo have that records high definition from satellites?


You know that they don't have a DVR that does that - the judge was referring to the fact that people are more likely to subscribe to Dish because they have a DVR as good at it is. Without the DVR, many Dish customers would be cable+DVR customers.


----------



## Martin Tupper

RoyK said:


> Do they? What product does TiVo have that records high definition from satellites?


HR10-250?


----------



## stevel

Martin Tupper said:


> HR10-250?


Technically, that's a DirecTV product, not TiVo, even though TiVo designed and built it. It is also no longer manufactured. TiVo has no product to record HD signals from an external device (and the only consumer product I know of that can do that is a recently announced PC device from Hauppauge.


----------



## HPD

This guy has a great idea.

http://messages.finance.yahoo.com/S...tm&bn=18009&tid=419353&mid=419353&tof=4&frt=2


----------



## RoyK

HPD said:


> This guy has a great idea.
> 
> http://messages.finance.yahoo.com/S...tm&bn=18009&tid=419353&mid=419353&tof=4&frt=2


As GoHokies! (should have) said (un)welcome back Netsurfer.

Stock touting is not allowed here - even TiVo stock so please stifle it!


----------



## Curtis

RoyK said:


> Do they? What product does TiVo have that records high definition from satellites?


Doesn't Dish have standard definition DVRs?


----------



## HPD

RoyK said:


> Stock touting is not allowed here - even TiVo stock so please stifle it!


Can you show me where it says that? I cannot find it.

http://tivocommunity.com/tivo-vb/rules.html


----------



## Curtis

HPD said:


> Can you show me where it says that? I cannot find it.
> 
> http://tivocommunity.com/tivo-vb/rules.html


http://www.tivocommunity.com/tivo-vb/showthread.php?p=6001464#post6001464


----------



## old7

HPD said:


> Can you show me where it says that? I cannot find it.
> 
> http://tivocommunity.com/tivo-vb/rules.html


Forum RULES & GUIDELINES

See item 13.


----------



## RoyK

old7 said:


> Forum RULES & GUIDELINES
> 
> See item 13.


Also item 11


----------



## old7

HPD said:


> None, because both Dish and DirecTv decided to steal Tivo technology instead of licensing it, along with every other cable company in the country.


You do realize that DirecTV has contracts with TiVo and TiVo originally designed DirecTV's DVRs. What exactly has DirecTV stolen?


----------



## HPD

old7 said:


> You do realize that DirecTV has contracts with TiVo and TiVo originally designed DirecTV's DVRs. What exactly has DirecTV stolen?


The contract allows DirecTV subscribers who already had DirecTivo's to continue using their DirecTivo's. In other words, DirecTV did not want to piss off customers so they struck a deal with Tivo.

That deal does not cover the DirecTV branded DVR's, the ones that copied Tivo's product, they stole Tivo's patent just like Dish.


----------



## classicX

Curtis said:


> Doesn't Dish have standard definition DVRs?


yes.

I believe the emphasis was to be placed on the fact that they record from satellite (directly).


----------



## ZeoTiVo

HPD said:


> That deal does not cover the DirecTV branded DVR's, the ones that copied Tivo's product, they stole Tivo's patent just like Dish.


any facts to go with this or are you just spamming away on your totally inaccurate posts on time warp patent


----------



## bkdtv

HPD said:


> The contract allows DirecTV subscribers who already had DirecTivo's to continue using their DirecTivo's. In other words, DirecTV did not want to piss off customers so they struck a deal with Tivo.
> 
> That deal does not cover the DirecTV branded DVR's, the ones that copied Tivo's product, they stole Tivo's patent just like Dish.


You are misinformed.

Part of the DirecTV-TiVo agreement states that DirecTV shall not be liable for any infringement during the length of the agreement. The agreement prohibits TiVo from suing DirecTV for any damages. Until the agreement expires, DirecTV can use whatever TiVo technology they want without fear of any penalty.


----------



## herdfan

bkdtv said:


> Part of the DirecTV-TiVo agreement states that DirecTV shall not be liable for any infringement during the length of the agreement. The agreement prohibits TiVo from suing DirecTV for any damages. Until the agreement expires, DirecTV can use whatever TiVo technology they want without fear of any penalty.


Sums it up pretty well.

Of course, when it was signed, TiVo needed the $3M or so per month D* was paying them. Once they get Charlie's money, they may not be so willing to sign an extension at that price.

Or course, D* now has the Replay patents, so TiVo probably doesn't want to go head-to-head with them over patent issues.


----------



## timckelley

What's the difference between Replay's patents and TiVo's patents? There must be a difference since two different patents can't patent the same thing.


----------



## herdfan

There are people here much smarter than me about the patent stuff, but my guess would be that each company is violating the others patents. So any suit filed against one for patent infringement would be met with a countersuit for patent infringement. Then the lawyers win.


----------



## RoyK

herdfan said:


> There are people here much smarter than me about the patent stuff, but my guess would be that each company is violating the others patents. So any suit filed against one for patent infringement would be met with a countersuit for patent infringement. Then the lawyers win.


The lawyers ALWAYS win!


----------



## old7

RoyK said:


> The lawyers ALWAYS win!


Not always. Judge makes lawyers pay for frivolity



> A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.
> 
> U.S. District Senior Judge Richard P. Matsch sanctioned attorneys Terrance McMahon and Vera Elson of the firm McDermott, Will and Emery, of Chicago and San Francisco, for "cavalier and abusive" misconduct and for having a "what can I get away with?" attitude during a 13-day patent infringement trial in Denver.
> 
> He ruled that the entire trial was "frivolous" and the case filed solely to stifle competition rather than to protect a patent.
> 
> Neither McMahon nor Elson returned phone calls. But their firm defended them by stating it "believes in vigorous and ethical advocacy on behalf of our clients. While we respect Judge Matsch, we disagree with the conclusions of the opinion and believe that it will be reversed on appeal."
> 
> The U.S. 10th Circuit Court of Appeals saw it differently and affirmed Matsch's decision to overturn the verdict.


McDermott Ordered to Pay Attorney Fees for Abuse of Advocacy

If you want to read the actual judge's ruling.


----------



## morac

herdfan said:


> There are people here much smarter than me about the patent stuff, but my guess would be that each company is violating the others patents. So any suit filed against one for patent infringement would be met with a countersuit for patent infringement. Then the lawyers win.


There were a number of similarities between Replay's and TiVo's patents. What happened early on is that Replay and TiVo decided on a cross-licensing agreement. Basically TiVo and Replay agreed not to sue each other for patent violation. Whether this now applies to DirectTV as well is debatable. In any case, it doesn't matter currently since DirectTV and TiVo already have an agreement.


----------



## Curtis

morac said:


> There were a number of similarities between Replay's and TiVo's patents. What happened early on is that Replay and TiVo decided on a cross-licensing agreement. Basically TiVo and Replay agreed not to sue each other for patent violation. Whether this now applies to DirectTV as well is debatable. In any case, it doesn't matter currently since DirectTV and TiVo already have an agreement.


Can you provide a cite for the cross licensing agreement from either Sonic/ReplayTV or TiVo? My understanding is that there is no evidence of such an agreement.


----------



## old7

Curtis said:


> Can you provide a cite for the cross licensing agreement from either Sonic/ReplayTV or TiVo? My understanding is that there is no evidence of such an agreement.


I do believe that we've been down this road before, in this thread. I honestly believed that there was an agreement, however I have to agree with Curtis, that no written agreement was reached. I spent several hours looking for something that would indicate that the agreement exists. While I did find several articles from news outlets reporting that an agreement had been reached, they never quoted anyone from either company stating that fact.

In addition I searched both companies SEC filings and found no indication that they entered a formal agreement. An agreement between TiVo and Sonic/ReplayTV would have been something that both companies would have been compelled to report in an SEC filing. Contrary to the news reports I don't believe that a formal agreement was reached.

Personally, I do believe that an "understanding" was reached, probably across a lawyers conference table, that an expensive, protracted lawsuit at an early stage in both companies was likely to do more harm to both companies than any good that might come to the victor. So with a nod and a handshake they both withdrew from the lawsuit.


----------



## Phantom Gremlin

HPD said:


> Tivo came out with a brilliant product.


I agree with you.

I want to clarify my rant about TiVo's management. My complaint was about the gross incompetence of TiVo's *current* management.

I only have quibbles with the management (and engineers) that developed what you call "a brilliant product". But that was back in the last millennium. Most startups fail, TiVo made it to an IPO and beyond. Even allowing for dot-com euphoria, that's still quite an accomplishment.


----------



## timckelley

I claim the ONE THOUSANDTH post of this thread!


----------



## GoHokies!

timckelley said:


> I claim the ONE THOUSANDTH post of this thread!


Time to lock this one up and start anew!


----------



## nrc

timckelley said:


> What's the difference between Replay's patents and TiVo's patents? There must be a difference since two different patents can't patent the same thing.


Here are the two DVR patents I found for ReplayTV.

Video data recorder with integrated channel guides

Method and apparatus for fast forwarding and rewinding in a video recording...

It seems like Replay must have more than that, but I sure couldn't find them. Maybe they have more filings pending that haven't been pursued because of the way they've changed hands.

By comparison, here's what comes up for TiVo.

http://patft.uspto.gov/netacgi/nph-...ivo&FIELD1=ASNM&co1=AND&TERM2=&FIELD2=&d=PTXT

The first of the two replay patents would seem to be the biggest concern for TiVo. It covers a functionality similar to WishLists. Unless it's tied closely enough to Replay's wonky "channels" scheme it could be a threat. It seems obvious and the timeline for their releases suggests that TiVo's development was simultaneous, but given our patent system I'm not sure how much it matters.

The second ReplayTV patent could be seen as relating to TiVo's auto correction function on FF, but it was submitted after TiVo was already public with that functionality.

If there is a patent on the fundamental concept of a DVR it is probably this one. It is listed on the side of the TiVo S3 box so it's probably safe to assume that TiVo is licensing it. It's also noted in at least one of the ReplayTV patents as prior art. So Eric and Romi Goldwasser originally patented the DVR back in 1991. TiVo and ReplayTV's patents are refinements and mechanisms for making it practical and usable.


----------



## Curtis

Echostar's "workaround" patent (apparently).

http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=%2Fnetahtml%2FPTO%2Fsearch-adv.html&r=1&p=1&f=G&l=50&d=PG01&S1=20080056682&OS=20080056682&RS=20080056682


----------



## bkdtv

Did Echostar file its petition today?


----------



## HiDefGator

Curtis said:


> Echostar's "workaround" patent (apparently).
> 
> http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=%2Fnetahtml%2FPTO%2Fsearch-adv.html&r=1&p=1&f=G&l=50&d=PG01&S1=20080056682&OS=20080056682&RS=20080056682


they aren't required to patent the workaround. it just has to not infringe Tivo's patent right? it really doesn't matter if their patent is approved or not.


----------



## ZeoTiVo

HiDefGator said:


> they aren't required to patent the workaround. it just has to not infringe Tivo's patent right? it really doesn't matter if their patent is approved or not.


so they do away with any indexing or manipulation of data while recording to the hard drive. Instead they figure out length of show and maybe size of frame with compression or whatever(not well versed in these specifics ) and keep that data with the show for playback and use algorithms on the trickplay to know how to FF/RW or skip back etc..

if that is what is running in their DVRs now - then it may well not infringe with TiVo Time Warp, though of course IANAL and the courts have the ultimate say in what happens next.


----------



## yunlin12

I really doubt the CPU in any current DVR's have the horse power to process HD VBR MPEG to provide frame size info for trick play, if such info is not already embedded in the MPEG stream. If they do rely on embedded info, how will it work with OTA HD? I think it's an interesting approach that may not infringe, just don't think they could've implemented it on their existing HW.


----------



## Curtis

"SAN JOSE, Calif. (AP) -- Dish Network Corp. on Monday asked a federal appeals court to rehear a patent dispute with TiVo Inc., saying the court's earlier ruling in TiVo's favor relied on inaccurate testimony from a TiVo witness."

http://biz.yahoo.com/ap/080317/tivo_patent.html?.v=2


----------



## ZeoTiVo

Curtis said:


> "SAN JOSE, Calif. (AP) -- Dish Network Corp. on Monday asked a federal appeals court to rehear a patent dispute with TiVo Inc., saying the court's earlier ruling in TiVo's favor relied on inaccurate testimony from a TiVo witness."
> 
> http://biz.yahoo.com/ap/080317/tivo_patent.html?.v=2


WTF - I have heard of getting your day in court but a whole week?

Love this quote from the linked article
"A third win for TiVo will boost the DVR pioneer's negotiating power in licensing deals with cable and satellite TV providers"


----------



## Curtis

From the appeal ruling:

"EchoStar points out that TiVo&#8217;s expert, Dr. Gibson, did not refer to the temporary
data storage buffer in the course of his general characterization of the components of
the physical data source in the EchoStar DVRs. Instead, he stated that &#8220;the physical
data source is on the Broadcom chip,&#8221; and he identified a number of circuits on that chip
on which the physical data source &#8220;relies.&#8221; In that context, he did not specifically state
that the temporary data storage buffer to which the data was pushed was part of the
physical data source or part of the Broadcom chip. EchoStar&#8217;s experts, Drs. Rhyne and
Johnson, testified that the data is &#8220;pushed&#8221; out of the elements on the Broadcom chip to
the temporary data storage buffer adjoining, but separate from, the Broadcom chip.
Even though EchoStar does not contest that the data is extracted from the temporary
data storage buffer, it contends that the temporary storage buffer is not part of the
physical data source and therefore that the data is not extracted from the physical data
source. Dr. Gibson also testified, however, that the Ioctl command extracts the video
and audio data from the &#8220;physical data source.&#8221; Under EchoStar&#8217;s reasoning, his two
statements, made one after the other, are in conflict. Even assuming a conflict in his
testimony, however, the jury was entitled to weigh the evidence and find that Dr.
Gibson&#8217;s failure to specifically identify the temporary data storage buffer as part of the
physical data source is outweighed by his much clearer statement that the Ioctl
command extracts data from the physical data source, which necessarily includes the
adjoining temporary data storage buffer. "

Assuming this is the same "conflict" Dish cites in the rehearing request, the appeals court has already considered the argument.


----------



## bkdtv

Are we looking at another month for the appeals court to decide whether to rehear the dispute?


----------



## peteypete

Seems like a silly argument to be asking for a retrial or even an en banc hearing.

Maybe the law intern wrote it up.



Curtis said:


> From the appeal ruling:
> 
> "EchoStar points out that TiVos expert, Dr. Gibson, did not refer to the temporary
> data storage buffer in the course of his general characterization of the components of
> the physical data source in the EchoStar DVRs. Instead, he stated that the physical
> data source is on the Broadcom chip, and he identified a number of circuits on that chip
> on which the physical data source relies. In that context, he did not specifically state
> that the temporary data storage buffer to which the data was pushed was part of the
> physical data source or part of the Broadcom chip. EchoStars experts, Drs. Rhyne and
> Johnson, testified that the data is pushed out of the elements on the Broadcom chip to
> the temporary data storage buffer adjoining, but separate from, the Broadcom chip.
> Even though EchoStar does not contest that the data is extracted from the temporary
> data storage buffer, it contends that the temporary storage buffer is not part of the
> physical data source and therefore that the data is not extracted from the physical data
> source. Dr. Gibson also testified, however, that the Ioctl command extracts the video
> and audio data from the physical data source. Under EchoStars reasoning, his two
> statements, made one after the other, are in conflict. Even assuming a conflict in his
> testimony, however, the jury was entitled to weigh the evidence and find that Dr.
> Gibsons failure to specifically identify the temporary data storage buffer as part of the
> physical data source is outweighed by his much clearer statement that the Ioctl
> command extracts data from the physical data source, which necessarily includes the
> adjoining temporary data storage buffer. "
> 
> Assuming this is the same "conflict" Dish cites in the rehearing request, the appeals court has already considered the argument.


----------



## jmoak

Curtis said:


> "SAN JOSE, Calif. (AP) -- Dish Network Corp. on Monday asked a federal appeals court to rehear a patent dispute with TiVo Inc., saying the court's earlier ruling in TiVo's favor relied on inaccurate testimony from a TiVo witness."
> 
> http://biz.yahoo.com/ap/080317/tivo_patent.html?.v=2


There seems to be a great deal of moss growing on the wheels of justice.


----------



## timckelley

EchoStar should be found in contempt of court for dragging this thing out so long.  Just accept your defeat and pay the penalty.


----------



## HiDefGator

Since Dish controls the data stream being sent to the boxes, why couldn't they perform the indexing before they send the stream out. If they send the index data along with the data stream then they wouldn't need to do indexing at all on the box. And the new method presumably wouldn't infringe.


----------



## Daven

HiDefGator said:


> Since Dish controls the data stream being sent to the boxes, why couldn't they perform the indexing before they send the stream out. If they send the index data along with the data stream then they wouldn't need to do indexing at all on the box. And the new method presumably wouldn't infringe.


Are the index entries dependent upon the start of file? In other words, if someone started a recording late would all the trick play stuff work with a pre determined index?


----------



## CuriousMark

HiDefGator said:


> Since Dish controls the data stream being sent to the boxes, why couldn't they perform the indexing before they send the stream out. If they send the index data along with the data stream then they wouldn't need to do indexing at all on the box. And the new method presumably wouldn't infringe.


Sounds familiar, oh yeah, I posted that over on another forum a few weeks ago. That is one possibility. One of the responses to my post was that it probably still did infringe, but I didn't quite follow the expert's logic as to why. Apparently simply using the tags to control trick play is enough to infringe. Perhaps that is why E*/Dish's patent application replaces using tags on the playback side with guessing where the tags should have been placed based on a statistical model.


----------



## CuriousMark

Daven said:


> Are the index entries dependent upon the start of file? In other words, if someone started a recording late would all the trick play stuff work with a pre determined index?


They should not be if they are done correctly. If the tag is simply the number of milliseconds since the start of the file, they would work anywhere in the file without needing to play from the beginning.


----------



## Curtis

HiDefGator said:


> Since Dish controls the data stream being sent to the boxes, why couldn't they perform the indexing before they send the stream out. If they send the index data along with the data stream then they wouldn't need to do indexing at all on the box. And the new method presumably wouldn't infringe.


Dish doesn't know where on the hard drive the data is stored.


----------



## Johncv

This is from the Motley Fool.....

http://www.fool.com/investing/general/2008/03/18/dishing-out-desperation.aspx

The last two paragraphs tell it all.... 

However, maybe the real story here is how Dish Network sounds desperate -- and perhaps even overwhelmed. Yesterday, it disclosed that a new satellite fell short of reaching its intended orbit, delaying its high-definition content (including some local network channels -- ouch). Engineers from SES Americom and Lockheed Martin are trying to correct its orbit, but if the measures work, they will "substantially" reduce the satellite's service life. Good times.

Maybe Dish Network shareholders have good reason to worry that the stock is going to fail to reach its intended orbit.


----------



## HiDefGator

Curtis said:


> Dish doesn't know where on the hard drive the data is stored.


since dish writes the software that puts the data on the disk that would seem to be a solvable problem.


----------



## Curtis

HiDefGator said:


> since dish writes the software that puts the data on the disk that would seem to be a solvable problem.


I can see it now: "If it's The Soprano's, put data in location XXXXX. If Seinfeld, put data in location XXXXX."


----------



## 20TIL6

Curtis said:


> Can you provide a cite for the cross licensing agreement from either Sonic/ReplayTV or TiVo? My understanding is that there is no evidence of such an agreement.


I read somewhere that the Replay patents covered things like content management and organization. Like the ability to keep so many episodes, only record first run episodes, etc.

I can't remember where I read that, but it was kind of a swap between TiVo and Replay. TiVo let Replay use time warp, Replay let TiVo use those management features.


----------



## Curtis

20TIL6 said:


> I read somewhere that the Replay patents covered things like content management and organization. Like the ability to keep so many episodes, only record first run episodes, etc.
> 
> I can't remember where I read that, but it was kind of a swap between TiVo and Replay. TiVo let Replay use time warp, Replay let TiVo use those management features.


Maybe you read it on a message board from someone who just made it up.


----------



## HiDefGator

Curtis said:


> I can see it now: "If it's The Soprano's, put data in location XXXXX. If Seinfeld, put data in location XXXXX."


I don't understand the problem you are trying to describe. Are you suggesting there is no directory for the software to lookup which sector on the disk it put a show?


----------



## 20TIL6

Curtis said:


> Maybe you read it on a message board from someone who just made it up.


Sadly, that is possible.


----------



## Curtis

ZeoTiVo said:


> so they do away with any indexing or manipulation of data while recording to the hard drive. Instead they figure out length of show and maybe size of frame with compression or whatever(not well versed in these specifics ) and keep that data with the show for playback and use algorithms on the trickplay to know how to FF/RW or skip back etc..
> 
> if that is what is running in their DVRs now - then it may well not infringe with TiVo Time Warp, though of course IANAL and the courts have the ultimate say in what happens next.


Here is what Dish infringed. I can't find any reference to indexing.

"31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:

providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;

providing a source object, wherein said source object extracts video and audio data from said physical data source;

providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;

wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;

wherein said source object is automatically flow controlled by said transform object;

providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;

wherein said decoder converts said streams into display signals and sends said signals to a display;

wherein said sink object is automatically flow controlled by said transform object;

providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and

wherein said control object sends flow command events to said source, transform, and sink objects. "


----------



## ZeoTiVo

Curtis said:


> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;


I think it happens here and I thought there was some verbiage around parsing the data as it is converted to data streams. But I am not in on the real specific details of how that works at recording time.

there is encryption happening in the transform to data at a minimum.

Still if they are just dumping the digital stream to the hard drive with no processing then they _might_ not be infringing anymore. But I would hope a court still just shuts them down for dragging this out so long. their latest request for a rehearing is really just a frivolous try and an annoyance to the court, I would think.


----------



## Hew

ZzZzZzZz.....

Judicial system, WAKE UP!!!

ZzZzZzZz.....

Anyone want to guestimate how much longer before we hear from the Judges again?


----------



## yunlin12

*Posted by isthatajoke on investor village:*

"E* has until Monday, Mar. 17, to submit their request for a rehearing. As I understand it, precedental opinions must be re-heard en banc. But, requests for rehearing en banc are first assumed to request relief that the original panel can grant (weird, huh?), so the procedure should go like this:

Petition is distributed to the original panel first. If seven working days pass without a judge requesting a response from TiVo, the request is considered denied.

Whatever the decision by the original panel, the petition and panel result will be distributed to all of the active judges on the court. Again, if seven working days pass without action, the request is considered denied, and the clerk will file the decision.

Note that the seven-day periods are usually going to be eight days because the day the clerk distributes something doesn't count.

If a judge requests a response from TiVo, then we need to add the time given for the response (probably two weeks) and another seven working days for the judges to vote.

Any judge can request a 3-day extension to any of the time periods I've mentioned, but only one such extension will be granted per time period.

So, if the thing goes down to default denial (which is most probable), then we can expect to see something about April 9th. If the judges actually vote (rather than just letting it die), it could come somewhat earlier. If two extensions are requested, it could go to the 17th. If a response is requested from TiVo, then we could run into early to mid May.

Since a rehearing is extremely unlikely without a request for response from TiVo, we can look for the absence of such a response as an indicator of where we stand. It may, however, be common practice to request the response just in case it is needed, so the presence of a response doesn't tell us much, except that the timing of the decision will be extended somewhat. TiVo may prepare a response as soon as E* files their petition, just to keep the process moving.

In any event, the clock is ticking pretty loudly at this point, and next Monday it will get even louder."
*
Another post by Ques there:*

"Mainer

It is my understanding that the mandate will be finalized when it issues, i.e., seven days after the petition for rehearing is denied. The seven day grace period between denial and issuance of the mandate is most likely provided so that the Appellant can request a stay of the mandate prior to it issuing. In other words, the CAFC will most likely deny the request for stay within the 1-week period.

So if we are to believe the CAFC's previous comment that no further extensions should be anticipated, the mandate will issue seven days after the denial of rehearing (my guess being denial on 4/11 and mandate on 4/18).

So, TiVo will most likely file some sort of motion w/the lower court the day of or after the mandate issues (according to your timeline 4/22, and 4/18 according to mine).

In a nut-shell, the lower court does not have to wait for the Supremes to do anything before it continues proceedings unless the SC actually steps in and ask them to stop proceedings (although the SC will likely act quick enough on any request so as to make lwr. court proceeding ahead of the SC a moot point). My guess is the lower court gets it's case back on 4/18, and issues an expedited scheduling hearing shortly thereafter, i.e., in order to address the remaining issues."


----------



## Hew

yunlin12 said:


> *Posted by isthatajoke on investor village:*
> 
> "E* has until Monday, Mar. 17, to submit their request for a rehearing. As I understand it, precedental opinions must be re-heard en banc. But, requests for rehearing en banc are first assumed to request relief that the original panel can grant (weird, huh?), so the procedure should go like this:
> 
> Petition is distributed to the original panel first. If seven working days pass without a judge requesting a response from TiVo, the request is considered denied.
> 
> Whatever the decision by the original panel, the petition and panel result will be distributed to all of the active judges on the court. Again, if seven working days pass without action, the request is considered denied, and the clerk will file the decision.
> 
> Note that the seven-day periods are usually going to be eight days because the day the clerk distributes something doesn't count.
> 
> If a judge requests a response from TiVo, then we need to add the time given for the response (probably two weeks) and another seven working days for the judges to vote.
> 
> Any judge can request a 3-day extension to any of the time periods I've mentioned, but only one such extension will be granted per time period.
> 
> So, if the thing goes down to default denial (which is most probable), then we can expect to see something about April 9th. If the judges actually vote (rather than just letting it die), it could come somewhat earlier. If two extensions are requested, it could go to the 17th. If a response is requested from TiVo, then we could run into early to mid May.
> 
> Since a rehearing is extremely unlikely without a request for response from TiVo, we can look for the absence of such a response as an indicator of where we stand. It may, however, be common practice to request the response just in case it is needed, so the presence of a response doesn't tell us much, except that the timing of the decision will be extended somewhat. TiVo may prepare a response as soon as E* files their petition, just to keep the process moving.
> 
> In any event, the clock is ticking pretty loudly at this point, and next Monday it will get even louder."
> *
> *


*

So 7 working days from March 17th is the 26th I believe. Does this mean its already been denied or has there been any delay from the judges? Also what does "en banc" mean? Is there a website to keep track of the case.

Thanks for the info.*


----------



## herdfan

Hew said:


> So Also what does "en banc" mean?


This will explain it better than I could:

http://en.wikipedia.org/wiki/En_banc


----------



## HPD

yunlin12 said:


> *So, TiVo will most likely file some sort of motion w/the lower court the day of or after the mandate issues (according to your timeline 4/22, and 4/18 according to mine)*


*

Coming down to the wire. Hope this all gets sorted out before May 1. Thanks.*


----------



## yunlin12

Hew said:


> So 7 working days from March 17th is the 26th I believe. Does this mean its already been denied or has there been any delay from the judges? Also what does "en banc" mean? Is there a website to keep track of the case.
> 
> Thanks for the info.


There are actually two rounds of this 7 day default denial process. The 1st one is by the 3 judges who were on the appeal panel. That round I think is done, we are pretty well past 7 days since Mar 17. The second round is by all the judges in the appeals court. This is what people are estimating to be done by 4/9-11, if we don't hear any request for Tivo to respond, then it'll end up as a default denial.


----------



## HDTiVo

What is it that may be denied?


----------



## yunlin12

Dish's en banc hearing request to the appeal's court regarding the appeal's court's decision which upheld the software infringement verdict, as well as the injunction. Where have you been? hiding under a rock?


----------



## HDTiVo

yunlin12 said:


> Dish's en banc hearing request to the appeal's court regarding the appeal's court's decision which upheld the software infringement verdict, as well as the injunction. Where have you been? hiding under a rock?


So not the request for a new trial based on the "error" in expert testimony? What´s the timeline on that?


----------



## CuriousMark

They are one and the same. Although the request is for a rehearing by the appeals panel, or entire appeals court (en banc) and not a request for a new trial. E* is looking to get the appeals court judges to change their mind because they feel that TiVo's expert contradicted himself.


----------



## Daven

CuriousMark said:


> They are one and the same. Although the request is for a rehearing by the appeals panel, or entire appeals court (en banc) and not a request for a new trial. E* is looking to get the appeals court judges to change their mind because they feel that TiVo's expert contradicted himself.


E* is simply attempting to kill as much time as possible before the inevitable lifting of the stay on the injunction imposed on them by the circuit court in Texas. The injunction that will have most of their DVR boxes go dark if they cannot somehow avoid writing and then reading from a storage device prior to the picture being displayed.


----------



## BlackBetty

Petition for rehearing was just Denied!!!!!!!!!!!! Way to go TiVo.

PETITIONS FOR REHEARING AND REHEARING EN BANC

2006-1574	TIVO, INC. v. ECHOSTAR COMMUNICATIONS CORPORATION, ET AL. 
Denied.

http://www.cafc.uscourts.gov/daily.txt
Scroll to the bottom of the page.


----------



## timckelley

Yesssssssssss!!!


----------



## morac

So now what. Dish has already said they won't disable their DVRs despite the injunction. There's also nothing mentioned about how much money Dish now owes TiVo.

Here's TiVo's statement:
http://biz.yahoo.com/prnews/080411/aqf044.html?.v=42


----------



## Curtis

morac said:


> Dish has already said they won't disable their DVRs despite the injunction.


Got a quote?


----------



## Hew

"TiVo Statement on Decision by U.S. Court of Appeals to Deny the EchoStar Petition for a Rehearing En Banc
Friday April 11, 1:07 pm ET 


ALVISO, Calif., April 11 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the ruling by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. to deny EchoStar of its request for a rehearing en banc:
ADVERTISEMENT


"We are extremely pleased that the United States Court of Appeals for the Federal Circuit today denied EchoStar's petition for a rehearing en banc, upholding the Court's unanimous ruling in our favor on January 31, 2008, in EchoStar's appeal of the district court judgment of patent infringement, full award of damages and an order for the injunction to be reinstated.

Today's ruling brings us closer to resolution of EchoStar's infringement and reconfirms the strength of TiVo's Time Warp patent, which is in addition to the other benefits TiVo has to offer. We look forward to full enforcement of our rights in the near term.""

So this means that the 30 day countdown until Echostar must turn off all its DVR's has started, right. How long does it normally take for the losing company to pay the fine?

CONGRATS TO TIVO!!!


----------



## timckelley

May God have mercy on Echostar's soul.

On second thought, strike that... may they be doomed to eternal damnation.


----------



## morac

Curtis said:


> Got a quote?


It was a message to their subscribers posted earlier in this thread. Dish has said they've updated their DVRs so they no longer infringe and therefore don't need to be disabled.


----------



## bidderman9

OK, to the legal posters on this thread. You seemed to hit the nail on the head so far with this one. What are the next steps. How far are we from this thing being done for good?


----------



## Curtis

morac said:


> It was a message to their subscribers posted earlier in this thread. Dish has said they've updated their DVRs so they no longer infringe and therefore don't need to be disabled.


You said Dish would violate the injunction. They never said they would violate the injunction. The word "injunction" is nowhere in their statement. The injunction requires them to disable the DVR model numbers listed in the injunction. There are no "unless you stop infringing" words in it.

By the way, the same statement from Dish said that they would win the appeal. They were wrong about that.


----------



## PPC1

bidderman9 said:


> OK, to the legal posters on this thread. You seemed to hit the nail on the head so far with this one. What are the next steps. How far are we from this thing being done for good?


The next step is to file a petition for certiorari. This asks the U.S. Supreme Court to take up the issue. I am not really familiar with all of the issues in this case, but I find it extremely doubtful that the Supreme Court would accept cert. The U.S. Supreme Court generally will not review cases for factual errors or misapplication of the law by the lower courts. Instead, it looks more at cases where there is a split of authority on a particular important point of law between the circuit courts, or important unsettled questions of law in which there is no guiding authority. In short, the Supreme Court is more interested in settling what the law is or should be, rather than reviewing lower courts for error.

The petitioner would have 90 days to file the petition for cert. with the U.S. Supreme Court from the date the petition for rehearing is denied by the court of appeals. The respondent may, but need not, file a response, unless ordered to do so by the Supreme Court. This is due 30 days from the date the case is docketed with the Supreme Court, unless ordered otherwise. Then the parties wait for the court to grant or deny the petition. If its denied, that's the end of the appeal route. If a judgment for the Plaintiff remains intact, then its on to collection and proceedings suplmental if necessary to collect from the defendant. If cert is granted, the court will set a briefing schedule.


----------



## herdfan

morac said:


> It was a message to their subscribers posted earlier in this thread. Dish has said they've updated their DVRs so they no longer infringe and therefore don't need to be disabled.


They had to say that. If they had admitted that the court could force their DVR's to go dark in 30 days can you imagine the number of subs that would bail just at the thought they could lose their DVR's.

The problem for E* is that every day that passes and each loss that mounts, the cost to license the tech from TiVo just goes up and up.


----------



## Hew

So what happens in 30 days when the court tells Dish to shut off their DVR's? Dish says that they have developed a workaround. Doesn't this workaround need to be validated by the court first before it is legal?


----------



## Adam1115

Hew said:


> So what happens in 30 days when the court tells Dish to shut off their DVR's? Dish says that they have developed a workaround. Doesn't this workaround need to be validated by the court first before it is legal?


Then they will be forced to settle with TiVo.

I can't see any circumstance that they will shut their DVR's off.


----------



## PT30

morac said:


> It was a message to their subscribers posted earlier in this thread. Dish has said they've updated their DVRs so they no longer infringe and therefore don't need to be disabled.


But on the other hand, going against a court ruling results in serious fines for each day of continued DVR operation.


----------



## ZeoTiVo

Burn Dish, Burn.

What a load of hooey the have in dragging out the appeals process with nonsense filings and press communications to customer they can not legally back up.

I have lost interest in ever being their customer.


----------



## DPF

Wow, they just won't give up.

They plan to appeal to the Supreme Court

I guess I can see the "Why not?" argument. It just seems silly at this point. Like they're adding fuel to the fire for the final cost of this thing between the final award and the legal costs. Seriously, let it lie already.

Unless, and more likely, they're buying time to "refine" their "workaround". That along with just postponing the injunction by any means necessary in general. Perhaps in order to buy time to get eleventy brazzilion replacement non-infringing DVRs in the pipeline .

-DPF


----------



## PT30

herdfan said:


> They had to say that. If they had admitted that the court could force their DVR's to go dark in 30 days can you imagine the number of subs that would bail just at the thought they could lose their DVR's.
> 
> The problem for E* is that every day that passes and each loss that mounts, the cost to license the tech from TiVo just goes up and up.


I agree, they had to say that because DVR users will jump to cable or DirecTV, so Dish would lose boatloads of customers. Now that the court ruling is final, they most likely will begin losing boatloads of customers pretty soon.


----------



## George Cifranci

Here is the actual patent...

http://www.google.com/patents?id=IeoIAAAAEBAJ&dq=6,233,389


----------



## wicketr

Hew said:


> So what happens in 30 days when the court tells Dish to shut off their DVR's? Dish says that they have developed a workaround. Doesn't this workaround need to be validated by the court first before it is legal?


Can someone explain how Dish thinks they have gotten around the patent? Isn't the patent for "Time Warp" technology that allows you to pause and rewind live TV? Does the Dish DVR not have the "30 minute buffer" of live TV anymore?


----------



## DPF

Lastly, to the legals, they have to get a brand spanking new stay for the injunction, correct? Or does the old one hold while the SC decicion on whether to hear decided?

-DPF


----------



## davezatz

wicketr said:


> Can someone explain how Dish thinks they have gotten around the patent? Isn't the patent for "Time Warp" technology that allows you to pause and rewind live TV? Does the Dish DVR not have the "30 minute buffer" of live TV anymore?


The suit didn't apply to all Dish DVRs and is specific to technical minutia which are beyond my grasp and interest. (I'm speaking purely as a civilian observer here who sat in on some stuff.)


----------



## DPF

wicketr said:


> Can someone explain how Dish thinks they have gotten around the patent? Isn't the patent for "Time Warp" technology that allows you to pause and rewind live TV? Does the Dish DVR not have the "30 minute buffer" of live TV anymore?


The actual infringement is much more focused than just the "Time Warp" patent. It's certain functions within the capabilities outlined in the time warp patent. Namely the way the streams are split, stored, reassembled, and then output.

There's a whole lot of misinformation out there as to what the infringement was and people think that anyone who time-shifts is infringing on the time warp. Not the case. It's a certain portion of the mechanism used by TiVo to time-shift. Read back thru this thread. I know, it's a herculean task. The answers are there.

-DPF


----------



## timckelley

"The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling," said Dish Network in a statement. 

If this is so, then is the only point in Dish appealing to the Supreme Court is so they can avoid paying the onerous penalties for their past DVRs infringing on TiVo? And if their current DVRs no longer infringe, does that mean the penalties are no longer adding up with each day? They are now set in stone? That the penalties only apply to the days that occurred befor the date at which they downloaded noninfringing software to their DVRs? If so, what is the actual price tag of those set-in-stone penalties? This is just so confusing.


----------



## Greg Bimson

Only if you take the statement to be true. The best example is that Dish Network and Echostar have been found guilty of infringement, now it is Dish Network and Echostar that must prove they are no longer infringing to this judge.

The reality is that Dish Network and Echostar need to get this suit overturned, so they have no infringement issues nor damages payments.

If the suit continues on, it goes back to the same court which issued the guilty verdict. They will have to dispense with the exact issues, such as does the new software still infringe upon the Time Warp patent?

Just wait for the case to get back to the District Court of Eastern Texas. We'll see sparks fly.


----------



## BlackBetty

Wether or not E*'s new software infringes is moot in this case. E* will have to file suite against TiVo in a new case to prove it no longer infringes. But this will never happen. Because TiVo will only sign a very long multi year license agreement for ALL of E*'s DVR's. TiVo has E* by the [email protected] right now. The dumbest thing E* ever did was let it get this far. It has now put itself in a corner with little room to make any kind of move.


----------



## timckelley

I wonder what EchoStar thinks about the job their lawyers have done. Should they be pleased or disappointed?


----------



## flatcurve

I am so conflicted on this issue I don't know where to stand. I use both products from both companies... I feel like no matter how this is settled, I'm going to get screwed somehow. I like things the way I have them setup now, and would be pissed at both companies if I have to change it as a result of this litigation. That's what I get for being a consumer, I suppose... Oh well


----------



## MichaelK

Curtis said:


> You said Dish would violate the injunction. They never said they would violate the injunction. The word "injunction" is nowhere in their statement. The injunction requires them to disable the DVR model numbers listed in the injunction. There are no "unless you stop infringing" words in it.
> 
> By the way, the same statement from Dish said that they would win the appeal. They were wrong about that.


For point of reference they were also saying something like no one would be effected by the lawsuit from the networks about distance locals and in the end dish had to shut all those people off (they apparently worked out a deal where people could just hook up with a 3rd party- but still having your channels disconnected and having to go sign up elsewhere is far from having no effect).

I assume dish can just appeal to the Supreme Court and stall another few weeks?


----------



## Greg Bimson

MichaelK said:


> For point of reference they were also saying something like no one would be effected by the lawsuit from the networks about distance locals and in the end dish had to shut all those people off (they apparently worked out a deal where people could just hook up with a 3rd party- but still having your channels disconnected and having to go sign up elsewhere is far from having no effect).


To give another point of reference, this week Dish Network and NPS had to argue against the broadcasters in front of the Court of Appeals whether the "third party arrangement" is actually legal. So I expect a decision about that issue within the next two months.

As I recall, Echostar/Dish Network's course of action is to file for an emergency stay with the Supreme Court. That won't take long at all, and should have the case back at District Court by the end of May at the latest.


----------



## MichaelK

timckelley said:


> I wonder what EchoStar thinks about the job their lawyers have done. Should they be pleased or disappointed?


Echostars corporate strategy is apparently to be legal scumbags. To stonewall at every turn. To never negotiate and always fight. Theres an article from their hometown newspaper in Denver from a while back about how their lawyers are somewhat regularly to be found be judges to border on unethical with their tactics.

I dont know much about the DBS business or about dishs numbers but it sort of looks to me like its worked out alright for them in the past. Sure they get slammed here and there (like the distant networks issue or now this)- but sounds like their scummy behavior has worked out many times for them so in the end they are maybe net positive.

so Dish is probably happy they have stonewalled as long as they have and can't wait to get groundless request into the Supreme court if for no other reason but to stall.

Its not exactly the same (because neither is unethical or immoral which DISHs behavior in courts appears to be at times) - but its similar to how small market baseball teams try to sign their players young for long term deals and then keep signing them over and over before they can get to the free agent market- and then the opposite at the Yankees- the Yankees almost always wait till a contract is totally over before negotiating a fresh one. Its just a decision they have made. Both teams thing they have the best system.

Ergen apparently thinks being a professional scuzz is good business.


----------



## morac

Here's a bit more details on the current penalty totals:
http://www.bizjournals.com/denver/stories/2008/04/07/daily74.html



MichaelK said:


> I assume dish can just appeal to the Supreme Court and stall another few weeks?


Cases before the Supreme Court can take many months (or even years) before they are heard (or ignored). Assuming Dish can get an emergency stay on the injunction (which would probably be granted if the shutdown would affect a large number of people, which it does), Dish can then wait around for the Supreme Court to hear/ignore their case.

As an example on how long it can take, it took about 5 months between the time Microsoft appealed to the Supreme Court until the Court rejected to take on the case.


----------



## KoG

PPC1 said:


> The petitioner would have 90 days to file the petition for cert. with the U.S. Supreme Court from the date the petition for rehearing is denied by the court of appeals.


If I'm reading this right, then Dish has 90 days to file their appeal with the Supreme Court. But the original ruling and injunction takes affect 30 days from the final Appeals Court ruling. So I assume Dish will ask for some sort of temporary stay till the Supreme Court decides if they want to take up this appeal?


----------



## Greg Bimson

morac said:


> Cases before the Supreme Court can take many months (or even years) before they are heard (or ignored). Assuming Dish can get an emergency stay on the injunction (which would probably be granted if the shutdown would affect a large number of people, which it does), Dish can then wait around for the Supreme Court to hear/ignore their case.


Dish Network and Echostar can only request an emergency stay to the Supreme Court, while the plaintiffs are in process to submit a writ of certiorari to the Supreme Court to take on the case.

This shouldn't take long. If the request is denied by SCOTUS (I suspect it will be, as the only defense for the _en banc_ request was denied), then the case will head back to the District Court. I believe the plaintiffs will not receive any relief, and suspect the turn around between the emergency stay to SCOTUS and SCOTUS' denial to take another two or three of weeks.

Just because the injunction may harm a number of people is not a justification for a stay of the injunction. Just take a look at the amount of Blackberry users that were about to lose services from their patent infringement case, before an 11th hour agreement between the parties actually removed a threat of injunction.


----------



## Curtis

morac said:


> As an example on how long it can take, it took about 5 months between the time Microsoft appealed to the Supreme Court until the Court rejected to take on the case.


The writ of certiari was filed 01-11-08 with the Supreme Court. That's not 5 months.

Also, the mandate of the appeals court may not be stayed during the time the Supreme Court considers a writ of certiari.

"A party may move to stay the mandate pending 
the filing of a petition for a writ of certiorari 
in the Supreme Court. The motion must be 
served on all parties and *must show that the 
certiorari petition would present a substantial 
question and that there is good cause for a 
stay*."


----------



## Curtis

morac said:


> Assuming Dish can get an emergency stay on the injunction (which would probably be granted if the shutdown would affect a large number of people, which it does), Dish can then wait around for the Supreme Court to hear/ignore their case.


Here is what Judge Folsom had to say when he refused a stay of the injunction:

" the public interest would not be disserved by a permanent injunction. The public has an interest in maintaining a strong patent system. This interest is served by enforcing an adequate remedy for patent infringement --- in this case, a permanent injunction. The infringing products are not related to any issue of public health or any other equally key interest; they are used for entertainment. The public does not have a greater interest in allowing Defendants' customers' to continue to use their infringing DVRs."


----------



## nrc

I'm not a lawyer and I'm certainly not a judge, but it seems to me that Dish is in need of a major smackdown from the judge.

Here's the original injunction:
http://www.patentlyo.com/patent/TiVo_20Order_2.pdf

It doesn't say to shut them down unless or until you think you've found a work around. It says shut them down _permanently_. The obvious intent was for those units to be shutdown and remain shutdown until TiVo and the judge are satisfied that there's been a remedy. To blithely pretend that injunction just doesn't count anymore just because they say so when their views on what constitutes infringement have been proven faulty is outrageous.

Even if we were to assume that the software really doesn't infringe any longer the force of the injunction is needed to ensure that Dish promptly and fully complies with whatever discovery the courts and TiVo require to review that solution as infringing or not and if not, determine when that solution was fully implemented in order to assign damages for the period Dish was infringing.


----------



## herdfan

Greg Bimson said:


> Only if you take the statement to be true. The best example is that Dish Network and Echostar have been found guilty of infringement, now it is Dish Network and Echostar that must prove they are no longer infringing to this judge.


And remember, they initially said that their DVR's didn't infringe, so why would the court believe them now?


----------



## samo

> Even if we were to assume that the software really doesn't infringe any longer the force of the injunction is needed to ensure that Dish promptly and fully complies with whatever discovery the courts and TiVo require to review that solution as infringing or not and if not, determine when that solution was fully implemented in order to assign damages for the period Dish was infringing.


It is quite simpler than that. Let's take it step by step.
1. Assuming that Dish loses every possible appeal, stay and whatever legal words are used in this thread. Legal phase is over at this point and lets move to enforcement phase.
2. Dish is required to REMOVE all infringing software from all of the infringing models. Let's assume that they do that and make boxes into doorstops. They are not required to recall all the boxes because hardware is not infringing.
Dish pays whatever penalty is up to the day they REMOVED all the infringing software and are in compliance with the court order. Let's move to recovery phase.
3. At this point Dish can do whatever they want with these boxes - load them with the new non-infringing software that makes them alarm clocks, game consoles or perhaps IRDs with DVR functionality. Dish decided to load them with the DVR software that doesn't infringe. Is it possible to do? Of course it is. Microsoft software on original DishPlayers was not infringing (and was not part of the lawsuit), all Dish has to do is to make an improved derivative of this software. 
4. Back to legal phase. Nobody knows if NEW software infringes or not. There is a good chance it doesn't. Dish engineers are smart enough to come up with the best HD DVR on the market, they sure could have developed non-infringing derivative of Microsoft's software.
Will TiVo take a risk of going back to court to try to prove that NEW software infringes as well? I don't think so. But even if they do it will take years - Dish's pending lawsuit against TiVo will come first.
5. Final phase.
Dish and TiVo strike a deal and walk away saving face. Dish drops pending lawsuit against TiVo and buys right to TiVo software. Everybody is happy and Dish users will have an opportunity to get suggestions and TiVo advertisement.
Where do we stand right now?
Dish already REMOVED infringing software and already loaded NEW software. They almost done with all the appeals, so final phase is just around the corner.


----------



## PT30

herdfan said:


> And remember, they initially said that their DVR's didn't infringe, so why would the court believe them now?


Dish is lying again. They do not have software that does not infringe. Just judge their character. The are scum liars.


----------



## Adam1115

PT30 said:


> Dish is lying again. They do not have software that does not infringe. Just judge their character. The are scum liars.


Oh no. Not again.....


----------



## herdfan

Adam1115 said:


> Oh no. Not again.....


Sorry, I kind of left the door open for him.


----------



## HDTiVo

nrc said:


> It doesn't say to shut them down unless or until you think you've found a work around. It says shut them down _permanently_. The obvious intent was for those units to be shutdown and remain shutdown until TiVo and the judge are satisfied that there's been a remedy. To blithely pretend that injunction just doesn't count anymore just because they say so when their views on what constitutes infringement have been proven faulty is outrageous.


Does the change in scope of infringment (hardware) change the premise of the injunction enough to warrant a modification of it by the lower court?


----------



## RoyK

HDTiVo said:


> Does the change in scope of infringment (hardware) change the premise of the injunction enough to warrant a modification of it by the lower court?


Lawyers could -- and undoubtedly will/are -- make a strong case for that. But that's what lawyers do. I'd make the argument that if the hardware was found not to infringe and only the software did and if the units no longer have the software that was found to infringe then the box with the new software has not (yet) been shown to infringe.

And as I understand patent law the onus is on the patent owner to prove infringement.


----------



## Curtis

samo said:


> 2. Dish is required to REMOVE all infringing software from all of the infringing models. Let's assume that they do that and make boxes into doorstops. They are not required to recall all the boxes because hardware is not infringing.
> Dish pays whatever penalty is up to the day they REMOVED all the infringing software and are in compliance with the court order. Let's move to recovery phase.


No. Dish is required to stop recording and playing back from the hard drives.

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. *disable all storage to and playback from a hard disk drive of television data*) in all but 192,708 units of the infringing products that have been placed with an end user or subscriber.

Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


----------



## Curtis

HDTiVo said:


> Does the change in scope of infringment (hardware) change the premise of the injunction enough to warrant a modification of it by the lower court?


Here is what judge Folsom had to say about a potential partial win by Dish when he refused to stay the injunction during the appeal:

"A stay of the permanent injunction is not warranted.
Defendants identification of issues and rulings it plans to appeal is lengthy. Upon review, it seems that the Court has previously considered each at length. Although Defendants may prevail on some of the issues, they have not demonstrated a strong likelihood of success on appeal that would overturn the jurys verdict on all infringed claims."


----------



## Curtis

RoyK said:


> Lawyers could -- and undoubtedly will/are -- make a strong case for that. But that's what lawyers do. I'd make the argument that if the hardware was found not to infringe and only the software did and if the units no longer have the software that was found to infringe then the box with the new software has not (yet) been shown to infringe.


Blackberry case:

"On February 9, 2006, RIM announced that it had developed software workarounds that would not infringe the NTP patents, and would implement those if the injunction was enforced.

On March 3, 2006, after a stern warning from Judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a full and final settlement of all claims.


----------



## RoyK

Curtis said:


> Blackberry case:
> 
> "On February 9, 2006, RIM announced that it had developed software workarounds that would not infringe the NTP patents, and would implement those if the injunction was enforced.
> 
> On March 3, 2006, after a stern warning from Judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a full and final settlement of all claims.


Keyword - settlement.

RIM decided to settle in exchange for full rights from NTP forever thus saving the cost of developing and fielding their work around.



> http://www.news.com/BlackBerry-case-No-shutoff%2C-for-now/2100-1039_3-6042920.html
> 
> RIM's attorneys downplayed the work-around as a solution; lawyer Henry Bunsow did not even address the concept until about the last fourth of his presentation.
> 
> "It's not something that can be done overnight," he said, estimating that implementation would require about 2 million hours of labor and would also include "extensive public costs."


Dish has said that they have already developed and fielded the new software...


----------



## Martin Tupper

samo said:


> 2. Dish is required to REMOVE all infringing software from all of the infringing models. Let's assume that they do that and make boxes into doorstops. They are not required to recall all the boxes because hardware is not infringing.
> Dish pays whatever penalty is up to the day they REMOVED all the infringing software and are in compliance with the court order. Let's move to recovery phase.
> 3. At this point Dish can do whatever they want with these boxes - load them with the new non-infringing software that makes them alarm clocks, game consoles or perhaps IRDs with DVR functionality. Dish decided to load them with the DVR software that doesn't infringe. Is it possible to do? Of course it is. Microsoft software on original DishPlayers was not infringing (and was not part of the lawsuit), all Dish has to do is to make an improved derivative of this software.


The injunction does not state that they must remove the software. It states that they must disable all storage to and playback from a hard disk drive of television data in all of the infringing products. Furthermore they may not enable it in any future installation of the infringing products. The injunction is supposed to remain in force for the duration of the applicable TiVo patents.

Those models can _NOT_be used as DVR's again, unless (a) E* makes a licensing deal with TiVo or (b) E* goes back to court and _proves _that with the new software, those boxes are no longer infringing.



samo said:


> Will TiVo take a risk of going back to court to try to prove that NEW software infringes as well? I don't think so. But even if they do it will take years - Dish's pending lawsuit against TiVo will come first.


TiVo doesn't have to prove that new software (on the affected models) is infringing. Those models have already been found to be infringing. It becomes E*'s problem to prove that their boxes no longer infringe.


----------



## Adam1115

Regardless it's in Echostar's best interest to ignore the court ruling and deal with whatever repercussions. Any fines imposed by the court will cost less than the disastrous effects of disabling all of their DVR's.


----------



## Curtis

Adam1115 said:


> Regardless it's in Echostar's best interest to ignore the court ruling and deal with whatever repercussions. Any fines imposed by the court will cost less than the disastrous effects of disabling all of their DVR's.


I'm betting TiVo hopes Echostar ignores the ruling. The resulting triple damages would be spectacular.


----------



## GoHokies!

Curtis said:


> Blackberry case:
> 
> "On February 9, 2006, RIM announced that it had developed software workarounds that would not infringe the NTP patents, and would implement those if the injunction was enforced.
> 
> On March 3, 2006, after a stern warning from Judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a full and final settlement of all claims.


What was the "stern warning"?

"Settle this becuase actually going through with the injunction isn't in the public interest?"

or

"If you play games like that to try and get around my injunction, I'll crush you!:"


----------



## old7

GoHokies! said:


> What was the "stern warning"?
> 
> "Settle this becuase actually going through with the injunction isn't in the public interest?"
> 
> or
> 
> "If you play games like that to try and get around my injunction, I'll crush you!:"


More like:



> Judge Spencer said there was no escaping that RIM had been found to be infringing on NTP Inc.'s patents and he would issue a decision on an injunction "as soon as reasonably possible," according to Reuters.
> 
> "The simple truth, the reality of the jury verdict has not changed," Spencer said, adding that the parties should have settled out of court.


----------



## ariel1

The area no one seems to adress is the Hardware claim was thrown out. If Tivo pursues the hardware claim again, and those boxes are found to infringe then it doesnt matter what software they change on the box. However as long as the Hardware claim is out then it does leave an opportunity to change the software. It seems like the hardware claim is not out from the appeals court ruling just needs to be retried. 

"At several points, TiVo argues that even if this court were to overturn the jury&#8217;s 
verdict of literal infringement, there would still be ample evidence of infringement under 
the doctrine of equivalents. There are two problems with upholding the judgment on the 
hardware claims on that basis. First, the jury was told that if it found literal infringement 
it should not make a determination as to whether there was infringement under the 
doctrine of equivalents, so there was no verdict on the issue of equivalents with regard 
to the hardware claims. Second, we have construed two of the claim limitations more 
restrictively than the trial court&#8217;s instructions permitted. For that reason, even if the jury 
had reached a verdict with respect to the doctrine of equivalents we could not sustain 
that verdict merely upon finding that substantial evidence supported it. At this juncture, 
we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict 
other than to find infringement by equivalents. The parties, however, have not briefed 
that issue in any detail, and we therefore do not address it. More generally, we do not 
decide what further proceedings, if any, are appropriate in the district court regarding 
the equivalents issue. Instead, we leave that issue for the district court to resolve in the 
event that, on remand, TiVo decides to continue to pursue the hardware claims in light 
of this decision."


----------



## herdfan

ariel1 said:


> The area no one seems to adress is the Hardware claim was thrown out. If Tivo pursues the hardware claim again, and those boxes are found to infringe then it doesnt matter what software they change on the box.


Yes, and while everyone wants to point out that TiVo lost the hardware claim on appeal, they really didn't lose it in the sense that E* lost the software claim. The court just said go back and do this one again with a different standard. TiVo still could win the hardware claim in a retrial.


----------



## MichaelK

Adam1115 said:


> Regardless it's in Echostar's best interest to ignore the court ruling and deal with whatever repercussions. Any fines imposed by the court will cost less than the disastrous effects of disabling all of their DVR's.


is that true?

Aren't the damages in patent cases based on the value that the infringement made? So in the end wouldn't the judge just create fines equal to whatever amount of money dish saves by still keepign their DVR's on- plus since it's knowing they have to multiple x3?

no lawyer- so that's why I'm asking.


----------



## RoyK

MichaelK said:


> is that true?
> 
> Aren't the damages in patent cases based on the value that the infringement made? So in the end wouldn't the judge just create fines equal to whatever amount of money dish saves by still keepign their DVR's on- plus since it's knowing they have to multiple x3?
> 
> no lawyer- so that's why I'm asking.


No, the awards are based on the damages the plaintif (TiVo) proves - plus any punitive damages the judge might decide to award.


----------



## herdfan

RoyK said:


> No, the awards are based on the damages the plaintif (TiVo) proves - plus any punitive damages the judge might decide to award.


So lets say the judge decides that $1 per month per sub is fair (it's what D* pays TiVo) x 3 so E* has to pay TiVo $4 per month per sub. That is still much cheaper than losing millions of subs if their DVR's go dark.


----------



## KoG

herdfan said:


> So lets say the judge decides that $1 per month per sub is fair (it's what D* pays TiVo) x 3 so E* has to pay TiVo $4 per month per sub. That is still much cheaper than losing millions of subs if their DVR's go dark.


If they did that then the court can hold Dish in contempt of court and then the sky is the limit as to what the judge can do to them, including throwing people in jail. I don't think it will come to that but it would be idiotic for Dish to ignore a judge's order like that.


----------



## GoHokies!

RoyK said:


> No, the awards are based on the damages the plaintif (TiVo) proves - plus* any punitive damages the judge might decide to award*.


Bold mine.

If Dish effectively gives the judge the middle finger by saying "we're going to ignore your injunction because it'll be cheaper for us", you can bet that the judge will ensure that it actually won't be cheaper.


----------



## HDTiVo

Curtis said:


> Here is what judge Folsom had to say about a potential partial win by Dish when he refused to stay the injunction during the appeal:
> 
> "A stay of the permanent injunction is not warranted.
> Defendants identification of issues and rulings it plans to appeal is lengthy. Upon review, it seems that the Court has previously considered each at length. Although Defendants may prevail on some of the issues, they have not demonstrated a strong likelihood of success on appeal that would overturn the jurys verdict on all infringed claims."


If Folsom were not to modify his position, would E* be able/likely to go back to the Appeals level questioning the fairness of the injunction based on the change in scope of infringement?


----------



## classicX

One point of clarification - it's not ALL of their DVRs that must be disabled - the models that I have do not fall under this.


----------



## ZeoTiVo

HDTiVo said:


> If Folsom were not to modify his position, would E* be able/likely to go back to the Appeals level questioning the fairness of the injunction based on the change in scope of infringement?


I do not think so because the software was found to be infringing and upheld completely - that alone makes the boxes infringing until proven otherwise.

and, as pointed out, the hardware was not overturned - just remanded back for retrying.

So the scope has not really changed all that much.

Then at a personal level - Judge Folsom has already expressed his judicial wrath at DISH for the legal games they play. He would have to be forced to soften his stance and there was no such compelling direcion from the higher courts.

The thing we do not know that could play into this is "Which side is not coming to the table to negotiate an out of court settlement?" If it was Tivo beleieved to be the sticking point then that might change the Judge's attitude as well. I would think it is again DISH that is holding up any progress there as well.

In short DISH has not made any friends and the only thing in DISH's favor is the Judicial system reluctance to hurt consumers but that has about played out itself as well now, I think.


----------



## Curtis

HDTiVo said:


> If Folsom were not to modify his position, would E* be able/likely to go back to the Appeals level questioning the fairness of the injunction based on the change in scope of infringement?


The appeals court didn't change a single word of the injunction. They liked it fine.

Appeals court:

"The district courts injunction was stayed during the course of these proceedings. The stay that was issued pending appeal will dissolve when this appeal becomes final. "


----------



## HDTiVo

Curtis said:


> They liked it fine.


OK, so you are saying the Appeals Court would have altered the wording of the injunction already itself in the latest round if there were any reason to do so based on the action(s) they took. Thus the issue is past.


----------



## BobCamp1

ZeoTiVo said:


> The thing we do not know that could play into this is "Which side is not coming to the table to negotiate an out of court settlement?" If it was Tivo beleieved to be the sticking point then that might change the Judge's attitude as well. I would think it is again DISH that is holding up any progress there as well.
> 
> In short DISH has not made any friends and the only thing in DISH's favor is the Judicial system reluctance to hurt consumers but that has about played out itself as well now, I think.


Good points. It's amazing it has gotten this far. These cases are always settled out of court.

I don't think E*'s lawyers are playing THAT dirty -- it only seems that way when you're on the other side.

The real question is will the injunction be stayed again while Dish proves their new software does not infringe. Judge Fossom ordered the injunction, and with a stroke of the pen he can immediately change it or take it away. But I don't think Judge Fossom will do this even if he should, and he'll use the threat of an injunction to force a settlement.

So when the Supreme Court has rejected the appeal, expect a settlement (with cross-licensing agreement) for around 70-120% of the original judgment plus interest. (remember the original judgment included hardware infringement which no longer applies). The only things to determine here are:

1. Does Tivo want future royalties per box even though the DVRs may not infringe anymore, and what lump sum dollar amount would that be?

2. Does E*'s lawsuit against Tivo have any merit? It would suck to turn around and give E* the money right back and get slapped with an injunction.

3. A bird in the hand is worth two in the bush. And lawyers aren't cheap. And Tivo could use the money.


----------



## dswallow

BobCamp1 said:


> 2. Does E*'s lawsuit against Tivo have any merit? It would suck to turn around and give E* the money right back and get slapped with an injunction.


If I were TiVo, any negotiated settlement I agreed to would include a blanket dismissal of all such suits against me, too.


----------



## 20TIL6

And remember. For TiVo, today's settlement talks with E* have value beyond just dealing with E*. When you have the opportunity to craft a stick, make it a big, menacing one.


----------



## Curtis

BobCamp1 said:


> So when the Supreme Court has rejected the appeal, expect a settlement (with cross-licensing agreement) for around 70-120% of the original judgment plus interest. (remember the original judgment included hardware infringement which no longer applies). The only things to determine here are:
> 
> 1. Does Tivo want future royalties per box even though the DVRs may not infringe anymore, and what lump sum dollar amount would that be?
> 
> 2. Does E*'s lawsuit against Tivo have any merit? It would suck to turn around and give E* the money right back and get slapped with an injunction.
> 
> 3. A bird in the hand is worth two in the bush. And lawyers aren't cheap. And Tivo could use the money.


 TiVo doesn't need a settlement to get past damages. The court has already awarded that. With continued infringement during the appeal and interest, it's up to more than $200 million.

The current stay will immediately dissolve when the appeal is final. If Dish doesn't comply they will be subject to contempt proceedings and heavy fines. The DVRs will go black and Dish will lose $240 miiion per month in lost income.

Judge Folsom will not provide a stay. He was against the stay during the appeal. The stay was provided over his objections. Here is what he said:

"Plaintiff has demonstrated both that it continues to suffer irreparable harm in the absence of an injunction and that there is no adequate remedy at law. Defendants compete directly with Plaintiff  Defendants market their infringing products to potential DVR customers as an alternative to purchasing Plaintiffs DVRs. The availability of the infringing products leads to loss of market share for Plaintiffs products. Loss of market share in this nascent market is a key consideration in finding that Plaintiff suffers irreparable harm  Plaintiff is losing market share at a critical time in the markets development, market share that it will not have the same opportunity to capture once the market matures."
"Enjoining Defendants will likely cause some harm  but on balance, Defendants will endure less harm than Plaintiff. The infringing products do not form the core of Defendants satellite transmission business. And the injunction will not interfere with Defendants satellite transmission."


----------



## Greg Bimson

BobCamp1 said:


> So when the Supreme Court has rejected the appeal, expect a settlement (with cross-licensing agreement) for around 70-120% of the original judgment plus interest. (remember the original judgment included hardware infringement which no longer applies). The only things to determine here are:
> 
> 1. Does Tivo want future royalties per box even though the DVRs may not infringe anymore, and what lump sum dollar amount would that be?
> 
> 2. Does E*'s lawsuit against Tivo have any merit? It would suck to turn around and give E* the money right back and get slapped with an injunction.
> 
> 3. A bird in the hand is worth two in the bush. And lawyers aren't cheap. And Tivo could use the money.


I think it may be quite a bit more than 70 to 120 percent, depending on how the contempt proceedings may go.

The judgment was not reduced by the Court of Appeals. So hardware claims on the patent is moot.

Of course TiVo wants a recurring revenue stream from DISH/SATS. That is how they'll be able to ram other licensing deals through the cable world.

I thought the DISH/SATS suit against TiVo has already been destroyed beyond repair. There is a problem with the patent in DISH/SATS portfolio, and the case is on indefinite hold. If one were to worry about whether or not DISH/SATS could gain any money back from TiVo via a separate patent dispute, remember that TiVo also holds many more patents. TiVo can turn around and request either a retrial on the hardware claims of the Time Warp patent, or even file suit claiming infringement on another patent.

Yes, but it is more likely appearing that TiVo will receive the money. Soon.


----------



## ZeoTiVo

BobCamp1 said:


> I don't think E*'s lawyers are playing THAT dirty -- it only seems that way when you're on the other side.


I agree that the lawyers are just doing their job and staying within the law. But the dragging out of every last day possible and then appeals that are seen as going over gorund already well covered just adds to a judge's docket and clerks workload. It is an obvious buying time for no reason other than giving DISH more time, Judges do not like that


----------



## Phantom Gremlin

BobCamp1 said:


> I don't think E*'s lawyers are playing THAT dirty -- it only seems that way when you're on the other side.


That depends on what the meaning of "dirty" is.

Following is something I've posted before. It shows that E* has previously been slapped down by an appears court for IMO "playing dirty":

Echostar has a long history of being vexatious litigants. How is that good for stockholders? It's good for nothing other than Charlie's ego. See, as my first google hit, this appeals court ruling. A choice morsel:

_It is evident from the record and the course of litigation that the behavior of EchoStar's attorneys was both "unreasonable and vexatious." The District Court found that, given the narrow standard of review, the arguments presented on behalf of EchoStar were completely meritless and therefore the course of the proceedings was unwarranted. The District Court also found that these attorneys need not have filed lengthy briefs at every stage of the arbitration and court proceedings in order to preserve EchoStar's arguments for appeal. Nothing in the record indicates that the District Court abused its discretion in finding such action sanctionable.​_Heh heh. Note that last word *"sanctionable".* That's where E*'s lawyers were told to *personally* pay the costs of the other party's "reasonable attorney's fees". Unfortunately that was only on the order of $63,000. It would probably take hitting Charlie across the forehead with a $1 billion personal judgment to get him to change this behavior.


----------



## PrincetonTech

20TIL6 said:


> And remember. For TiVo, today's settlement talks with E* have value beyond just dealing with E*. When you have the opportunity to craft a stick, make it a big, menacing one.


Today Tivo and Dish are talking? Could you point me to the announcement?


----------



## 20TIL6

PrincetonTech said:


> Today Tivo and Dish are talking? Could you point me to the announcement?


No, not in the literal sense that they are talking today. But in the sense that this resolution, which is inevitable and in the near-term, will be the basis of 'the stick' when talking carrots with TWC, Charter, (even DirecTV.... Oh, there I've done it, here it comes....)


----------



## PrincetonTech

20TIL6 said:


> No, not in the literal sense that they are talking today. But in the sense that this resolution, which is inevitable and in the near-term, will be the basis of 'the stick' when talking carrots with TWC, Charter, (even DirecTV.... Oh, there I've done it, here it comes....)


Ok, I got it. Carry big stick and use it hard I always say.


----------



## BobCamp1

Greg Bimson said:


> I think it may be quite a bit more than 70 to 120 percent, depending on how the contempt proceedings may go.
> 
> The judgment was not reduced by the Court of Appeals. So hardware claims on the patent is moot.
> 
> Of course TiVo wants a recurring revenue stream from DISH/SATS. That is how they'll be able to ram other licensing deals through the cable world.
> 
> I thought the DISH/SATS suit against TiVo has already been destroyed beyond repair. There is a problem with the patent in DISH/SATS portfolio, and the case is on indefinite hold. If one were to worry about whether or not DISH/SATS could gain any money back from TiVo via a separate patent dispute, remember that TiVo also holds many more patents. TiVo can turn around and request either a retrial on the hardware claims of the Time Warp patent, or even file suit claiming infringement on another patent.
> 
> Yes, but it is more likely appearing that TiVo will receive the money. Soon.


What contempt proceedings? I was saying negotiations were probably resuming now.

Based on my previous experience, an appeal's court "opinion" on the reward is irrelevant in negotiations. As long as the amount is remotely reasonable, they never overturn it.

Paying royalties per box is probably what E* was trying to avoid. Maybe they offered a lump sum and that got rejected. Usually this is the sticking point during these types of negotiations.

Even if the E* suing Tivo case is on hold, it's still out there, and these cases have an effect on the final amount.

If Tivo had more "strong" patents, wouldn't they have used them against E* already? Why pay lawyer's fees twice?

There is no exact science on the dollar amount. It's just based on my previous experience in these kind of cases. A lump sum royalty payment may tack on an additional 100-500%, as it did for NTP vs. RIM. But that's pretty rare.


----------



## Greg Bimson

BobCamp1 said:


> What contempt proceedings? I was saying negotiations were probably resuming now.


The down low...

The injunction will take hold very soon, and no one will need to do anything for the injunction to start. See, the District Court judge issued the injunction and said it should start 30 days from the final judgement, which was back in August, 2006. And this judge did not put a stay on the injunction for the duration of the appeal. DISH/SATS had to ask the Court of Appeals for a stay on the injunction.

So, when the Court of Appeals ruled in favor of TiVo that there was still infringement, they left the wording of the injunction alone, and removed the stay to expire seven days after all appeals moved out of their control.

The injunction will be live before the case gets back to the District Court.


BobCamp1 said:


> Paying royalties per box is probably what E* was trying to avoid. Maybe they offered a lump sum and that got rejected. Usually this is the sticking point during these types of negotiations.


And royalties per box is exactly what TiVo wants. And with an injunction in hand, when the case gets back to District Court, there is only one course of action:

Your honor, we have this injunction which has told the defendants to shut off their boxes, and those boxes haven't been shut down, so we'd like to start contempt proceedings against DISH/SATS for violating the injunction.

Curtis says that the injunction should take place in two weeks.


----------



## timckelley

I hope Dish's teeth are grinding about now.


----------



## HDTiVo

I think TiVo probably wants money per box *per month*, and that is what they got in the judgement.


----------



## ZeoTiVo

business people the world over are gathering to watch charlie go down in flames on this one.

cable companies may give TiVo good terms just cause they gave DISH such a big black eye. 


No, I am not a deep plant by HPD


----------



## qz3fwd

Lets hope they pay dearly for their arrogance and are severly punished for dragging their feet.


----------



## BlackBetty

If the apeal becomes final 7 calendar days after the rehearing denial, that would mean This Friday April 18th the injunction starts back up.

If it is 7 business days, that would make this Tuesday the 22nd. 

Its going to be a very very interesting 30-40 days. Time to make some popcorn and watch the fireworks.

Of course E* will file with the SC for a stay on the injunction until the SC can rule whether or not they will hear the case. Anyone out there now how likely the SC is to agree on a stay? I know it is extremely unlikely that the SC would hear this case.


----------



## Curtis

BlackBetty said:


> If the apeal becomes final 7 calendar days after the rehearing denial, that would mean This Friday April 18th the injunction starts back up.


That is the schedule unless Dish asks the appeals court for a stay pending certiorari. Hint: They will.


----------



## dswallow

EchoStar has had how many years now to get these subscribers moved over to one of the newer "non-infringing" DVRs. Considering how much they've delayed this whole process, if there's even one customer left with infringing equipment by now, EchoStar deserves to have the DVRs pulled out from them.

They shouldn't be announcing how they've downloaded new "non-infringing" software to them, but instead should be announcing how there's none left in service to shut off.


----------



## Adam1115

dswallow said:


> EchoStar has had how many years now to get these subscribers moved over to one of the newer "non-infringing" DVRs. Considering how much they've delayed this whole process, if there's even one customer left with infringing equipment by now, EchoStar deserves to have the DVRs pulled out from them.
> 
> They shouldn't be announcing how they've downloaded new "non-infringing" software to them, but instead should be announcing how there's none left in service to shut off.


Where is this mysterious non-infringing DVR...?

ALL of their current DVR's are infringing AFAIK...


----------



## SleepyBob

The Dish 622 was not named in the suit, so it is presumed non-infringing until TiVo files suit against it.


----------



## BlackBetty

SleepyBob said:


> The Dish 622 was not named in the suit, so it is presumed non-infringing until TiVo files suit against it.


TiVo can ask the lower courts to make a summary judgement on the other DVR's that weren't named at the time of the original lawsuit was filed. Which I believe was some 4 years ago.


----------



## MichaelK

SleepyBob said:


> The Dish 622 was not named in the suit, so it is presumed non-infringing until TiVo files suit against it.


also- I think the last 2 generations of the HD dvr also are not listed.

interesting to see if the newer onces aren't listed becasue of timing or if they have a new method that really isn't infringing....


----------



## Curtis

SleepyBob said:


> The Dish 622 was not named in the suit, so it is presumed non-infringing until TiVo files suit against it.


TiVo will ask for a preliminary injunction in a contempt of court hearing citing Dish's history of infringement and inability to tell the truth.


----------



## BobCamp1

MichaelK said:


> also- I think the last 2 generations of the HD dvr also are not listed.
> 
> interesting to see if the newer onces aren't listed becasue of timing or if they have a new method that really isn't infringing....


It is believed none of the DVRs are infringing anymore. You can tell -- the 30 second skip and instant backup buttons aren't as reliable as they once were.

Of course, that is up for a judge to decide.


----------



## BobCamp1

Greg Bimson said:


> The down low...
> 
> The injunction will be live before the case gets back to the District Court.And royalties per box is exactly what TiVo wants.


Assuming SCOTUS doesn't grant a stay, of course.

Royalties per box isn't what Tivo is going to get in a settlement with E*. For most cases that have gone this far it's a lump-sum arrangement. Though almost no case goes this far, so anything could be possible.

It'll be interesting. What happens if the original injunction takes effect and is later dissolved (i.e. E* successfully proves they no longer infringe and never infringed when the injunction was in effect)? Does E* still pay for violating it? Is that left up to the judge?


----------



## PPC1

Does anyone know if Echostar had to post a supersedeas bond, or provide an irrevocable letter of credit as a condition to pursue the appeal and get the stay of execution of the district court's judgment? If so, TiVo will have an easy time collecting.


----------



## BlackBetty

If anyone actually believes E* pulled out a workaround out of mid air....then I have a bridge to sell you.

They needed to say something to their customers so they don't jump ship in droves. Believe me, E* will end up settling.


----------



## Curtis

PPC1 said:


> Does anyone know if Echostar had to post a supersedeas bond, or provide an irrevocable letter of credit as a condition to pursue the appeal and get the stay of execution of the district court's judgment? If so, TiVo will have an easy time collecting.


Funds were put in an interest bearing escrow account. I think it was $94 million. That doesn't cover the last 2 years worth of continued infringement or interest.


----------



## HDTiVo

Curtis said:


> Funds were put in an interest bearing escrow account. I think it was $94 million. That doesn't cover the last 2 years worth of continued infringement or interest.


As a side curiousity, do you know how the liability will be/might be affected/distributed by E* spinning off its hardware business?


----------



## BobCamp1

Curtis said:


> Funds were put in an interest bearing escrow account. I think it was $94 million. That doesn't cover the last 2 years worth of continued infringement or interest.


The original judgment was $73.9 million. The $94 million includes everything up to the date of the recent appeals court ruling, even interest. And interest lately isn't much.

E* makes $150-$200 million of profit a quarter. (Die-hard Tivo fans will have to look up the word "profit", as they may be unfamiliar with this term. But at least they'll get to use it one of these upcoming quarters.  ).

This really isn't a lot of money for E* so far. Maybe that's why they haven't settled yet.


----------



## BlackBetty

BobCamp1 said:


> This really isn't a lot of money for E* so far. Maybe that's why they haven't settled yet.


They haven't settled yet because they don't want to pay ongoing monthly license fee's. It really is as simple as that.

The court will twists E*'s arm really tight when the injunction clock starts ticking again very soon.

E* should have settled this years ago. Now TiVo has them by the throat and its going to cost Charlie mutiples of what it would have cost him 3 years or so ago to settle.


----------



## Curtis

BobCamp1 said:


> The original judgment was $73.9 million. The $94 million includes everything up to the date of the recent appeals court ruling, even interest. And interest lately isn't much.


No. It was $89.6 million 20 months ago. Add to that damages for continued infringement during those 20 months and the interest on the new total amount. It's well over $200 million now.

"TiVo Statement on Order Granting Injunction Against EchoStar and Damages of Over $89.6 Million

ALVISO, Calif., Aug 18, 2006 /PRNewswire-FirstCall via COMTEX News Network/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television services for digital video recorders (DVR), today announced that U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products). Judge Folsom also ordered ECC to pay TiVo approximately $73.992 million in damages as awarded by the jury, prejudgment interest at the prime rate through July 31, 2006 of approximately $5.638 million, and supplemental damages for infringement through July 31, 2006 in the amount of approximately $10.317 million. Judge Folsom denied EchoStar's request to stay the injunction pending appeal. The injunction extends to all of ECC's affiliates, employees, agents and representatives, and any persons in active concert or participation with them who have notice of the order. The Judge's ruling is final and is appealable."


----------



## Curtis

BobCamp1 said:


> E* makes $150-$200 million of profit a quarter.


That's not nearly enough. 4 million blacked out DVRs will cost Dish. $240 million per month.


----------



## HDTiVo

It makes me nervous when this starts to feel like a cable news talk show with a democratic and a republican strategist as the guests.


----------



## BlackBetty

HDTiVo said:


> It makes me nervous when this starts to feel like a cable news talk show with a democratic and a republican strategist as the guests.


don't forget to mention yourself. The peanut gallery


----------



## Adam1115

LOL, they have a judgement right? And all of those leased DVR's are owned by echostar? Couldn't they have Sheriff's seize the DVR's out of people's homes?


----------



## PrincetonTech

BobCamp1 said:


> It is believed none of the DVRs are infringing anymore. You can tell -- the 30 second skip and instant backup buttons aren't as reliable as they once were.
> 
> Of course, that is up for a judge to decide.


The Tivo detractors on these boards would call that a software glitch. Now its a feature?


----------



## PrincetonTech

BlackBetty said:


> If anyone actually believes E* pulled out a workaround out of mid air....then I have a bridge to sell you.
> 
> They needed to say something to their customers so they don't jump ship in droves. Believe me, E* will end up settling.


I agree with ALL of the above 100 percent.


----------



## PrincetonTech

BobCamp1 said:


> The original judgment was $73.9 million. The $94 million includes everything up to the date of the recent appeals court ruling, even interest. And interest lately isn't much.


That total was from the original lawsuit, not the appeal.

Earlier in this thread, someone figured it out and with damages mounting at 6.4 million per month we are now up to approximately 230 million.


----------



## PrincetonTech

Curtis said:


> That's not nearly enough. 4 million blacked out DVRs will cost Dish. $240 million per month.


Are you assuming in that figure that all blacked out DVR users will cancel their Dish accounts?


----------



## GoHokies!

Adam1115 said:


> LOL, they have a judgement right? And all of those leased DVR's are owned by echostar? Couldn't they have Sheriff's seize the DVR's out of people's homes?


Tivo could raise more money by selling video of this on Amazon Unbox - I'd certainly pay to see the entertainment!


----------



## ZeoTiVo

GoHokies! said:


> Tivo could raise more money by selling video of this on Amazon Unbox - I'd certainly pay to see the entertainment!


bad dish, bad dish watcha gonna do?
Watcha gonna do when they injunction you?


----------



## Curtis

PrincetonTech said:


> Are you assuming in that figure that all blacked out DVR users will cancel their Dish accounts?


Yes. There won't be a picture. I figure they will stop sending in payments.


----------



## samo

dswallow said:


> EchoStar has had how many years now to get these subscribers moved over to one of the newer "non-infringing" DVRs. Considering how much they've delayed this whole process, if there's even one customer left with infringing equipment by now, EchoStar deserves to have the DVRs pulled out from them.
> 
> They shouldn't be announcing how they've downloaded new "non-infringing" software to them, but instead should be announcing how there's none left in service to shut off.


That brings a very interesting question. Absolute majority of affected DVR's are not leased. I myself have 4 50X DishDVrs. DishDvrs allow you to have a setting not to accept software updates, so Dish can not force the software update unless user permits it. Technically Dish can do software download to disable DVR recording capability, but unless user accepts it, it will do nothing. Dish can not recall these DVRs either because they don't belong to Dish. 
Another good question is, how many of these older DVRs are still in service? I bet not that many. If it is a million or two, it will be cheaper for Dish to just replace them with non-infringing models than to pay TiVo extortion fees.


----------



## HiDefGator

samo said:


> That brings a very interesting question. Absolute majority of affected DVR's are not leased. I myself have 4 50X DishDVrs. DishDvrs allow you to have a setting not to accept software updates, so Dish can not force the software update unless user permits it. Technically Dish can do software download to disable DVR recording capability, but unless user accepts it, it will do nothing. Dish can not recall these DVRs either because they don't belong to Dish.
> Another good question is, how many of these older DVRs are still in service? I bet not that many. If it is a million or two, it will be cheaper for Dish to just replace them with non-infringing models than to pay TiVo extortion fees.


I'm pretty sure dish can send a msg to your dvr telling it you haven't purchased any channels.


----------



## Curtis

samo said:


> Another good question is, how many of these older DVRs are still in service? I bet not that many. If it is a million or two, it will be cheaper for Dish to just replace them with non-infringing models than to pay TiVo extortion fees.


I'm betting there are 3-4 million known infringing boxes now. There are no known non-infringing models.

Dish doesn't have 4 million boxes sitting in inventory. These are the days of just-in-time production. Products are built just before they are to be delivered. Parts to build the boxes are delivered just before they are needed on the assembly line.

It would take several years to build 4 million boxes. Customers won't sit in front of a black screen for more than a day or two. They will give their business to competitors who will most likely lock them in for a year or more with contracts.

Meanwhile, Dish will lose $240 million per month and will outlay $1 billion up front to order parts for millions of new boxes that most likely infringe anyway and then they won't have anyone to give them to because the customers are gone.

Bad plan.


----------



## dswallow

Curtis said:


> I'm betting there are 3-4 million known infringing boxes now. There are no known non-infringing models.


There are specific models that are identified as infringing and the courts orders apply only to those models; the vast majority of Dish's DVR's are not included among those models.


----------



## Curtis

dswallow said:


> There are specific models that are identified as infringing and the courts orders apply only to those models; the vast majority of Dish's DVR's are not included among those models.


The courts orders apply to the specific models listed and "any other product and all other products that are only colorably different therefrom". The courts orders are not limited to the specific models listed.


----------



## PrincetonTech

Curtis said:


> Yes. There won't be a picture. I figure they will stop sending in payments.


Good point.


----------



## PrincetonTech

samo said:


> That brings a very interesting question. Absolute majority of affected DVR's are not leased. I myself have 4 50X DishDVrs. DishDvrs allow you to have a setting not to accept software updates, so Dish can not force the software update unless user permits it. Technically Dish can do software download to disable DVR recording capability, but unless user accepts it, it will do nothing. Dish can not recall these DVRs either because they don't belong to Dish.
> 
> Another good question is, how many of these older DVRs are still in service? I bet not that many. If it is a million or two, it will be cheaper for Dish to just replace them with non-infringing models than to pay TiVo extortion fees.


I suspect Dish is the same as DirecTV. To prevent theft of signal, there is most likely a chip on board. DirecTV can authorize and unauthorize a box my sending a signal up to the satellite and back down. That signal targets the box by serial number. It is embedded in the chip. It has nothing to do with the software. For instance, lets say you stopped sending in your payment. Do you really think that Dish would let you use that box to steal their signal? Of course they have a way to unauthorize the unit even if you turn off software updates.

Your second paragraph assumes that there is such a thing as a non-infringing Dish DVR. So far, that has not been proven. The reason Dish announced that is most likely to try to prevent a mass exodus of Dish owners from switching to another company before all the legalities are final.


----------



## PrincetonTech

samo said:


> it will be cheaper for Dish to just replace them with non-infringing models than to pay TiVo extortion fees.


By the way, this is not extortion. Two court trials found Dish guilty of infringing on the legally owned property rights of the Tivo patent.

Extortion is an illegal activity, similar to what Dish did to Tivo in stealing the Tivo patent. Accepting court ordered money from Dish is a legal aspect of things. You have it backwards.


----------



## PrincetonTech

dswallow said:


> EchoStar has had how many years now to get these subscribers moved over to one of the newer "non-infringing" DVRs. Considering how much they've delayed this whole process, if there's even one customer left with infringing equipment by now, EchoStar deserves to have the DVRs pulled out from them.
> 
> They shouldn't be announcing how they've downloaded new "non-infringing" software to them, but instead should be announcing how there's none left in service to shut off.


I think you are wrong here. Just because Dish has come out with newer hardware that was not named in the original lawsuit does not automatically mean that they do not infringe. Besides, it is not about the hardware, it is about the software. That is what the trial results said.

I believe that eventually there will be a new trial to go after all Dish model numbers.


----------



## PrincetonTech

BlackBetty said:


> TiVo can ask the lower courts to make a summary judgement on the other DVR's that weren't named at the time of the original lawsuit was filed. Which I believe was some 4 years ago.


I agree 100 percent. Just because a model did not exist when the first law suit took place is no excuse.


----------



## PrincetonTech

dswallow said:


> There are specific models that are identified as infringing and the courts orders apply only to those models; the vast majority of Dish's DVR's are not included among those models.


Are you really sure about that? I remember reading on this thread a long list of infringing models. Seems to me there were something like 9-12 models.


----------



## dswallow

PrincetonTech said:


> Are you really sure about that? I remember reading on this thread a long list of infringing models. Seems to me there were something like 9-12 models.


All but 192,708 of the models DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 are covered by the court order.


----------



## ZeoTiVo

some other posters used to put up 10 replies or so in a row who were they  Oh yah, netsurfer and HPD. I guess PT30 never got a chance to visit this thread


----------



## Greg Bimson

BobCamp1 said:


> It'll be interesting. What happens if the original injunction takes effect and is later dissolved (i.e. E* successfully proves they no longer infringe and never infringed when the injunction was in effect)? Does E* still pay for violating it? Is that left up to the judge?


I'll try this...

Why would the original injunction take effect and be dissolved later? This is a final injunction. It cannot be argued unless the infringing party does not follow the direction of the injunction. The only argument, that they now no longer infringe, doesn't matter.

In most cases, it is the threat of the judge issuing an injunction and having it take effect that draws the parties together to settle. In this case, the injunction has already been issued and will go live as soon as a couple of processes are complete. There is no need for human intervention, as the injunction will automatically take effect.

There is no negotiating to "fix" the parts that are infringing and have the injunction removed. The injunction stands and the defendant must comply with it or face contempt proceedings. Just by changing the software on the infringing boxes does not change the status of the injunction. And the software changes will be shot down in a contempt proceeding very quickly.


----------



## Greg Bimson

dswallow said:


> All but 192,708 of the models DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 are covered by the court order.


I want people to think about this one very carefully. I have changed the software on the above boxes so they no longer infringe, and now call them the DP-5001, DP-5008, DP-5010, DP-5022, DP-6025, DP-7021, DP-9021 and DP-9042. Now I no longer have any infringing units with customers.

True or false?


----------



## ZeoTiVo

Greg Bimson said:


> I want people to think about this one very carefully. I have changed the software on the above boxes so they no longer infringe, and now call them the DP-5001, DP-5008, DP-5010, DP-5022, DP-6025, DP-7021, DP-9021 and DP-9042. Now I no longer have any infringing units with customers.
> 
> True or false?


model numbers go with hardware - not software. You can not change the model number merely with a software update.

Anyone know if they mentioned specific software versions along with hardware model numbers


----------



## Greg Bimson

ZeoTiVo said:


> model numbers go with hardware - not software. You can not change the model number merely with a software update.


I believe DISH/SATS' 4xxx standalone receiver had many updates. I have a friend that had a lower number in the 4X00 series and it was software upgraded to a 4900. So some of DISH/SATS' model numbers have changed with a software upgrade. So my above question still stands.

Or, can the case be made that the statement, "U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products)," would apply simply to the hardware as ZeoTiVo mentions, or could TiVo simply prove that they are only infringing receivers with changed model numbers? And does this mean if TiVo can prove that the newer DVR's DISH/SATS released after the beginning of the case (the flagship ViP 622 and 722) weren't "colorably different" from the original models, they can also be included?

We do know for a fact that DISH/SATS will muddy up the waters as much as they can before trying to say, "my bad."


----------



## HDTiVo

Did the injunction require a complete shutdown of boxes or just disabling the recording functionality?


----------



## Curtis

HDTiVo said:


> Did the injunction require a complete shutdown of boxes or just disabling the recording functionality?


The injunction requires that the hard drive not record or play back. DVR "live TV" pictures are first recorded to the hard drive. I don't think a DVR can show a picture truly "live".


----------



## TK421

Greg Bimson said:


> Or, can the case be made that the statement, "U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products)," would apply simply to the hardware as ZeoTiVo mentions, or could TiVo simply prove that they are only infringing receivers with changed model numbers? And does this mean if TiVo can prove that the newer DVR's DISH/SATS released after the beginning of the case (the flagship ViP 622 and 722) weren't "colorably different" from the original models, they can also be included?


Does "colorably different" have a legal definition? It seems to me what standard is applied to that phrase is the key to how painful the injunction is.


----------



## Curtis

TK421 said:


> Does "colorably different" have a legal definition? It seems to me what standard is applied to that phrase is the key to how painful the injunction is.


Indeed. Precedence:

"A contempt proceeding for violation of a patent infringement injunction will lie where the new and alleged offending device is merely 'colorably' different from the enjoined device or from the patent. In American Foundry & Mfg. Co. v. Josam Mfg. Co., supra, this Court held, 79 F.2d at 117:
10

'As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely 'colorably' different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than 'colorably' different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding.'"

Link


----------



## HDTiVo

Curtis said:


> The injunction requires that the hard drive not record or play back. DVR "live TV" pictures are first recorded to the hard drive. I don't think a DVR can show a picture truly "live".


I guess we´ll see about that.


----------



## CuriousMark

Curtis said:


> The injunction requires that the hard drive not record or play back. DVR "live TV" pictures are first recorded to the hard drive. I don't think a DVR can show a picture truly "live".


There are some DVRs that do. People noticed that switching to live TV caused the buffer delay to go away. It was speculated here that not buffering live TV was a workaround to avoid infringing TiVos patent. So the hardware can play live TV without first storing to the HD. Disabling the hard drive would have the effect of turning the DVR into a large, expensive, power hungry receiver. It would still be a working receiver though. I don't recall if it was a cable company DVR or a Dish DVR being discussed, so whether Dish's DVRs will be able to continue working isn't known.


----------



## sbiller

CuriousMark said:


> There are some DVRs that do. People noticed that switching to live TV caused the buffer delay to go away. It was speculated here that not buffering live TV was a workaround to avoid infringing TiVos patent. So the hardware can play live TV without first storing to the HD. Disabling the hard drive would have the effect of turning the DVR into a large, expensive, power hungry receiver. It would still be a working receiver though. I don't recall if it was a cable company DVR or a Dish DVR being discussed, so whether Dish's DVRs will be able to continue working isn't known.


I think that is the way my piece of crap SA 8300HD worked until I dumped it for my series 3 and TiVo HD.


----------



## shpope

CuriousMark said:


> There are some DVRs that do. People noticed that switching to live TV caused the buffer delay to go away. It was speculated here that not buffering live TV was a workaround to avoid infringing TiVos patent. So the hardware can play live TV without first storing to the HD. Disabling the hard drive would have the effect of turning the DVR into a large, expensive, power hungry receiver. It would still be a working receiver though. I don't recall if it was a cable company DVR or a Dish DVR being discussed, so whether Dish's DVRs will be able to continue working isn't known.


I'm pretty sure my in-laws Time Warner SA unit acts like that. I say that because I noticed there was no delay between their kitchen (analog cable only) and their family room tv when watching the analog


----------



## Curtis

Notices sent out by Dish:

Link 1

Link 2


----------



## dswallow

It's gonna be fun seeing how TiVo approaches the court over Dish Networks refusal to follow the injunction.


----------



## PrincetonTech

Curtis said:


> Notices sent out by Dish:
> 
> Link 1
> 
> Link 2


So, the injunction went into effect on April 18 2008. It seems to me that Dish is now officially in contempt of court. Comments anyone? Does this mean heavy daily fines will soon be imposed, retroactive to April 18? I believe that will be the next step. $650,000 per day sounds about right to me. That should get the attention of the Dish scum bags and Dish stock holders.


----------



## gastrof

Curtis said:


> Notices sent out by Dish:
> 
> Link 1
> 
> Link 2


Has anyone checked these links?

They try to download files to your computer. I'd rather not walk blindly into that one until I hear from more courageous souls what's on the other end.


----------



## Greg Bimson

They are PDF files. Interesting reads.


----------



## CharlesH

dswallow said:


> It's gonna be fun seeing how TiVo approaches the court over Dish Networks refusal to follow the injunction.


Dish seems to be claiming that they have removed the infringing software, and thus they are not in violation of the injunction. But even stipulating that the new software does not infringe, I don't see anything in the injunction about software. It just mentions model names. But then again, I am not a lawyer, and I recognize that what words mean in the legal domain can be very different from how the words are ordinarily used.


----------



## PrincetonTech

CharlesH said:


> Dish seems to be claiming that they have removed the infringing software, and thus they are not in violation of the injunction. But even stipulating that the new software does not infringe, I don't see anything in the injunction about software. It just mentions model names. But then again, I am not a lawyer, and I recognize that what words mean in the legal domain can be very different from how the words are ordinarily used.


But their request for a rehearing was recently denied so the court is not interested in their lies. The injunction went into effect yesterday and it stands as the ruling of the courts. However, I do believe they have 30 days from yesterday to disable their DVR's. Can anyone confirm the 30 days? I believe I did read it somewhere.


----------



## mtchamp

I think the full force of the injunction is now in effect. The 30 days originally given to be in full force was before the appeal and I believe it no longer applies. The injunction is now in full force as Echostar declared in it's notices to it's vendors on 04/18/08. All parties knew the injunction takes effect when the appeals court issues it's mandate, for which a stay was not requested by Echostar, and makes the appeals court decision final and injunction live on 04/18/08.

The appeals court decision affirmed the injunction and is now in full force according to appeals court procedure by a mandate issued 7 calendar days from when the appeals court denied a petition for a rehearing en banc. As far as I can tell, Echostar is in contempt of court by issuing these notices to vendors and not disabling the DVR's as directed by the injunction on 04/18/08. Echostar could be racking up daily damages for contempt of court to the tune of one day so far.


----------



## PrincetonTech

mtchamp said:


> I think the full force of the injunction is now in effect. The 30 days originally given to be in full force was before the appeal and I believe it no longer applies. The injunction is now in full force as Echostar declared in it's notices to it's vendors on 04/18/08. All parties knew the injunction takes effect when the appeals court issues it's mandate, for which a stay was not requested by Echostar, and makes the appeals court decision final and injunction live on 04/18/08.
> 
> The appeals court decision affirmed the injunction and is now in full force according to appeals court procedure by a mandate issued 7 calendar days from when the appeals court denied a petition for a rehearing en banc. As far as I can tell, Echostar is in contempt of court by issuing these notices to vendors and not disabling the DVR's as directed by the injunction on 04/18/08. Echostar could be racking up daily damages for contempt of court to the tune of one day so far.


Excellent points all, thanks.


----------



## HDTiVo

HDTiVo said:


> I guess we´ll see about that.


I would imagine we´ll see some legal maneuvering in the next few days that will indicate the parties´ respective positions on the original injunction in light of the Appeals decision.


----------



## Hew

These notices from Echostar to TiVo are rediculous. Its almost like they think they are above the law and have decided that the "workaround" software has been approved by the courts when it hasn't. The way I read the notice it seems that echostar thinks that this is no big deal and that they have nothing to worry about. 

What is TiVo's next response to this? And when will we hear from them. 

How long would it take the courts to look through the "workaround", and deny or approve it?

I CAN'T WAIT FOR THE JUDGE TO SLAP THEM ACCROSS THE FACE WITH DAILY FINES. These guys are horrible, any normal fortune 500 company would have settled years ago. The CEO of Echostar and his hard headed ways are going to cost the company hundreds of millions...

I feel sorry for Echostar shareholders.


----------



## PrincetonTech

Hew said:


> How long would it take the courts to look through the "workaround", and deny or approve it?


I think this is the way it will play out. Dish has already been turned down for a rehearing on the "workaround"

Now they say they will appeal to the supreme court, yet the injunction is in force since yesterday. The Supreme court only agrees to hear less than one percent of all case requests because one court can only handle so much, and they tend to focus on really important issues. So I believe the Supreme Court will deny Dish their day in court.

For a court to deny or approve the "workaround" it would have to be handled in a separate law suit, not yet filed by Dish. Will they file it? Who really knows? Meanwhile, Dish will be in contempt of court and subjected to very stiff fines for disobeying the court. That should make them eager to strike a deal with Tivo because another court case could take several years and meanwhile huge fines would be happening every day that Dish remains in contempt of the court order to disable their DVR's.


----------



## 1003

*Echostar*
seems to be following the orders of the court by no longer sending new offending boxes as of 18 April 2008. While there would be penalties if non-compliant software remained in the field there appears to be no groundswell of panicked customers posting because thier DVR suddenly went 'dark'.

There does appear to be a major contradiction here in stopping more DVRs from entering customer installations but allowing those in the wild to remain alive. Maybe we 'missed that memo' or Echostar is stubbornly sticking to thier position that software currently in the boxes conforms, but are reducing contempt risk by not adding to the quantity of boxes...


----------



## Johncv

Hew said:


> These notices from Echostar to TiVo are rediculous. Its almost like they think they are above the law and have decided that the "workaround" software has been approved by the courts when it hasn't. The way I read the notice it seems that echostar thinks that this is no big deal and that they have nothing to worry about.
> 
> What is TiVo's next response to this? And when will we hear from them.
> 
> How long would it take the courts to look through the "workaround", and deny or approve it?
> 
> I CAN'T WAIT FOR THE JUDGE TO SLAP THEM ACCROSS THE FACE WITH DAILY FINES. These guys are horrible, any normal fortune 500 company would have settled years ago. The CEO of Echostar and his hard headed ways are going to cost the company hundreds of millions...
> 
> I feel sorry for Echostar shareholders.


Dont feel sorry for the shareholders, they have the voting rights to vote out the board of directors, which can replace the CEO. The next shareholders meeting for Dish (Now a separate company from E*) should be an interesting one. After all the legal maneuver play out TiVo may end up owning Dish.


----------



## HDTiVo

Hew said:


> I CAN'T WAIT FOR THE JUDGE TO SLAP THEM ACCROSS THE FACE WITH DAILY FINES.


My layman´s guess is you are in for a minimum 30 days of NOT BEING ABLE TO WAIT. 

Its going to be an interesting month again. Not to mention some strong voices here have their reputations on the line. I´m keeping my head low.
:duck:


----------



## Hew

mtchamp said:


> I think the full force of the injunction is now in effect. The 30 days originally given to be in full force was before the appeal and I believe it no longer applies. The injunction is now in full force as Echostar declared in it's notices to it's vendors on 04/18/08. All parties knew the injunction takes effect when the appeals court issues it's mandate, for which a stay was not requested by Echostar, and makes the appeals court decision final and injunction live on 04/18/08.
> 
> The appeals court decision affirmed the injunction and is now in full force according to appeals court procedure by a mandate issued 7 calendar days from when the appeals court denied a petition for a rehearing en banc. As far as I can tell, Echostar is in contempt of court by issuing these notices to vendors and not disabling the DVR's as directed by the injunction on 04/18/08. Echostar could be racking up daily damages for contempt of court to the tune of one day so far.


According to this post from mtchamp, the 30 days no longer apply. We should hear more about this within next week. Am I right in assuming that guys?


----------



## Curtis

Hew said:


> According to this post from mtchamp, the 30 days no longer apply. We should hear more about this within next week. Am I right in assuming that guys?


Dish told their dealers yesterday to stop installing certain models. Apparently they are convinced that the 30 days has long since passed. They should know.


----------



## PrincetonTech

Hew said:


> According to this post from mtchamp, the 30 days no longer apply. We should hear more about this within next week. Am I right in assuming that guys?


I agree. The 30 days was originally in 2006. The stay stopped that requirement for 21 months but now there should be no delay now that the stay has ended as of yesterday.


----------



## PrincetonTech

gastrof said:


> Has anyone checked these links?
> 
> They try to download files to your computer. I'd rather not walk blindly into that one until I hear from more courageous souls what's on the other end.


For those people afraid to click on the links:

Link one.

April 18, 2008
Re: NOTICE OF AMENDED FINAL JUDGMENT AND PERMANENT INJUNCTION
On behalf of DISH Network Corporation, DISH Network L.L.C. (collectively "DISH Network"), EchoStar Corporation, and EchoStar Technologies L.L.C. (collectively "EchoStar"), we write to provide you notice of the Amended Final Judgment and Permanent Injunction, dated September 8, 2006, that was entered by the U.S. District Court for the Eastern District of Texas, Marshall Division, in the case entitled TiVo Inc. v. EchoStar Communications Corp., et al. (the "Amended Final Judgment and Permanent Injunction"). A copy is attached for your reference and compliance. Pursuant to the Amended Final Judgment and Permanent Injunction, DISH Network and EchoStar are permanently enjoined from making, using, offering to sell, selling, or importing in the United States, the following products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 (the "Infringing Products"), either alone or in combination with any other product, and all other products that are only colorably different therefrom in the context of certain claims of TiVo's '389 patent (the "Infringed Claims"), whether individually or in combination with other products or as part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims. In addition, DISH Network and EchoStar were ordered to disable the DVR functionality in all but approximately 192,000 of the Infringing Products in the field within thirty days of the issuance of the injunction order. While the injunction order had been stayed pending appeal, that stay ends on April 18, 2008 and the Amended Final Judgment and Permanent Injunction is now in full force and effect. In anticipation of this potential result, DISH Network and EchoStar redesigned their DVR functionality so that it would not infringe the '389 patent and have downloaded the redesigned software to all of their DVRs in the field not otherwise covered by the approximately 192,000 set top boxes exempted from the injunction order. Because DISH Network and EchoStar have taken steps to modify their DVR products so that they are not covered by the Infringed Claims, we believe that no further action is necessary on your part at this time. Should you have any information or questions regarding compliance with the Amended Final Judgment and Permanent Injunction, please email [email protected].
Thank you for your time and consideration.


----------



## PrincetonTech

LINK 2

April 18, 2008
Re: CLARIFICATION TO NOTICE OF AMENDED FINAL JUDGMENT AND
PERMANENT INJUNCTION

This is a clarification of the "Notice of Tivo Injunction" that was sent this morning. DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722, have all received the redesigned software and can continue to be sold, installed and activated. With respect to those models, no further action is necessary on your part at this time. However, the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software. Because the injunction goes into effect today, any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field. 721, 921, 942 and Homezone 1022 models that are already installed and activated are not subject to the injunction and can continue to be used by customers.


----------



## David Scavo

PrincetonTech said:


> LINK 2
> Re: CLARIFICATION TO NOTICE OF AMENDED FINAL JUDGMENT AND
> PERMANENT INJUNCTION


I find the most interesting part to be the following highlighted passages in the "clarification" memo:



> This is a clarification of the "Notice of Tivo Injunction" that was sent this morning. DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722, have all received the redesigned software and can continue to be sold, installed and activated. With respect to those models, no further action is necessary on your part at this time. *However, the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software.*
> 
> Because the injunction goes into effect today, *any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field.*
> 
> *721, 921, 942 and Homezone 1022 models that are already installed and activated are not subject to the injunction and can continue to be used by customers.*
> <end quote>
> 
> WTF ??????? I understand the "smokescreen" they are trying to pull off on the other models. But willfully refusing to comply on the 721, 921, and 942 ??????
> 
> Folsom is NOT going to like that AT ALL.


----------



## dswallow

David Scavo said:


> WTF ??????? I understand the "smokescreen" they are trying to pull off on the other models. But willfully refusing to comply on the 721, 921, and 942 ??????


Most likely the total number of those models is less than that ~192,000 number that represents the number of infringing units Dish was permitted to have since they existed prior to some important date (patent filing, perhaps -- I forget) and Dish is just using that as the reason they can continue operating.


----------



## Curtis

dswallow said:


> ~192,000 number that represents the number of infringing units Dish was permitted to have since they existed prior to some important date (patent filing, perhaps -- I forget)


The exempt units represent the units that TiVo would have sold with lifetime subscriptions had it not been for illegal competition from Dish. TiVo was awarded one-time payments for these units so there is no award for recurring royalties on this number of units only. It's just a number. There is no particular model number involved.


----------



## PrincetonTech

Curtis said:


> The exempt units represent the units that TiVo would have sold with lifetime subscriptions had it not been for illegal competition from Dish. TiVo was awarded one-time payments for these units so there is no award for recurring royalties on this number of units only. It's just a number. There is no particular model number involved.


Damn, Curtis, you sure are one very knowledgeable dude. Great to have you here.


----------



## HDTiVo

Curtis said:


> Dish told their dealers yesterday to stop *installing *certain models. Apparently they are convinced that the 30 days has long since passed. They should know.


The 30 days only applied to the act of *disabling * (in service) DVR functionality.

Some of you are claiming the 30 days ran out from the original issuance. We will see.


----------



## ZeoTiVo

dswallow said:


> It's gonna be fun seeing how TiVo approaches the court over Dish Networks refusal to follow the injunction.


Does TiVo need to do anything?

Have not seen anything that indicates how Judge Folsom feels about DISH stand that they are now in compliance with injunction. more importantly I have not seen anything official that clearly indicates the legal position of DISH on this.

It seems though that if Judge Folsom felt there was some actionable course to take that he can take it without TiVo having to do anything further.


----------



## dswallow

ZeoTiVo said:


> It seems though that if Judge Folsom felt there was some actionable course to take that he can take it without TiVo having to do anything further.


Generally I believe it is TiVo's responsibility to present motions to the judge for action regarding any non-compliance by Dish Network.


----------



## ZeoTiVo

dswallow said:


> Generally I believe it is TiVo's responsibility to present motions to the judge for action regarding any non-compliance by Dish Network.


I would agree on new things like newer models TiVo thinks is not colorably different but thisis about an injunction that was put in place by the courts and DVR hardware models that are still running.

Now the appealls court did throw in that consumer lifeline of remanding the hardware infringement back to the lower court for retrying. It did serve the purpose of making the issue cloudy in regards to existing hardware models with new software. TiVo would have to do something to get a hardwre retrial going.

I guess what I am saying is that the key player, Judge Folsom, has been quiet on the whole thing for a while now.


----------



## restart88

PMFJI but I just read on the SatelliteGuys site this morning that basically the latest turn of events is a judge ordered all Dish DVRs turned off except for the VIPs. Here is my response to that.

If this turns out to be the fact bye, bye Tivo!

Since I now don't pay DVR fees I refuse to pay for both Tivo and a Dish DVR fee on any new receiver Dish may have to exchange me for. And I will go from a Tivo fan to a Tivo foe PDQ.


----------



## ZeoTiVo

restart88 said:


> PMFJI but I just read on the SatelliteGuys site this morning that basically the latest turn of events is a judge ordered all Dish DVRs turned off except for the VIPs. Here is my response to that.
> 
> If this turns out to be the fact bye, bye Tivo!
> 
> Since I now don't pay DVR fees I refuse to pay for both Tivo and a Dish DVR fee on any new receiver Dish may have to exchange me for. And I will go from a Tivo fan to a Tivo foe PDQ.


you should actually read the last 3 or so pages of this thread and get the facts.


----------



## dswallow

ZeoTiVo said:


> you should actually read the last 3 or so pages of this thread and get the facts.


Dishheads don't need facts.


----------



## Curtis

restart88 said:


> PMFJI but I just read on the SatelliteGuys site this morning that basically the latest turn of events is a judge ordered all Dish DVRs turned off except for the VIPs.


The VIP DVRs may not be immune. They use the Broadcom chip too and may be covered by the "not colorably different" part of the injunction and required to shut down too.


----------



## Hew

restart88 said:


> PMFJI but I just read on the SatelliteGuys site this morning that basically the latest turn of events is a judge ordered all Dish DVRs turned off except for the VIPs. Here is my response to that.
> 
> If this turns out to be the fact bye, bye Tivo!
> 
> Since I now don't pay DVR fees I refuse to pay for both Tivo and a Dish DVR fee on any new receiver Dish may have to exchange me for. And I will go from a Tivo fan to a Tivo foe PDQ.


Could you please post a link to where the judge ordered all dish dvr's turned off. Or is this the order from the injuction.

Dish stole TiVo patents... Why should TiVo be blamed for Dish's crime? The reason why Dish was offering free dvr service is to try and put TiVo out of business, and it almost worked. That also explains why Dish dragged its feet for sooo long, they must have been hoping that TiVo management would throw in the towel or be bad enough to put the company in bankruptcy.

In reallity, Dish with treble damages could end up owing TiVo around 750 million.

Here's another question, what would tivo do with that money anyone? Buy Circuit City?


----------



## restart88

ZeoTiVo said:


> you should actually read the last 3 or so pages of this thread and get the facts.


Actually I did and I'm still not sure how this actually will shake out, as some have said the "work-around" may or may not be acceptable to the judge or Tivo. At least that's my understanding.


----------



## restart88

dswallow said:


> Dishheads don't need facts.


I resent that! My concerns are not baseless.

I'm a consumer and I just want the stuff I pay for to work. If 2 companies have money terms to work out fine! Just so it's not the end users getting the shaft.


----------



## restart88

Hew said:


> Could you please post a link to where the judge ordered all dish dvr's turned off. Or is this the order from the injuction.


I'm just going by this and what others have commented. This is a PDF found in this link of what Dish is saying itself (I can't figure out how to just post the PDF as a direct link). And it has been posted here previously.

http://www.satelliteguys.us/dish-network-forum/132547-notice-tivo-injunction.html

April 18, 2008
Re: NOTICE OF AMENDED FINAL JUDGMENT AND PERMANENT INJUNCTION

On behalf of DISH Network Corporation, DISH Network L.L.C. (collectively "DISH Network"),EchoStar Corporation, and EchoStar Technologies L.L.C. (collectively "EchoStar"), we write to provide you notice of the Amended Final Judgment and Permanent Injunction, dated September 8, 2006, that was entered by the U.S. District Court for the Eastern District of Texas, Marshall Division, in the case entitled TiVo Inc. v. EchoStar Communications Corp., et al. (the "Amended Final Judgment and Permanent Injunction"). A copy is attached for your reference and compliance.

Pursuant to the Amended Final Judgment and Permanent Injunction, DISH Network and EchoStar are permanently enjoined from making, using, offering to sell, selling, or importing in the United States, the following products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 (the "Infringing Products"), either alone or in combination with any other product, and all other products that are only colorably different therefrom in the context of certain claims of TiVo's '389 patent (the "Infringed Claims"), whether individually or in combination with other products or as part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims. In addition, DISH Network and EchoStar were ordered to disable the DVR functionality in all but approximately 192,000 of the Infringing Products in the field within thirty days of the issuance of the injunction order.

While the injunction order had been stayed pending appeal, that stay ends on April 18, 2008 and the Amended Final Judgment and Permanent Injunction is now in full force and effect. In anticipation of this potential result, DISH Network and EchoStar redesigned their DVR functionality so that it would not
infringe the '389 patent and have downloaded the redesigned software to all of their DVRs in the field not otherwise covered by the approximately 192,000 set top boxes exempted from the injunction order.

Because DISH Network and EchoStar have taken steps to modify their DVR products so that they are not covered by the Infringed Claims, we believe that no further action is necessary on your part at this time. Should you have any information or questions regarding compliance with the Amended Final Judgment and Permanent Injunction, please email [email protected].

Thank you for your time and consideration.


----------



## btwyx

restart88 said:


> Since I now don't pay DVR fees I refuse to pay for both Tivo and a Dish DVR fee on any new receiver Dish may have to exchange me for. And I will go from a Tivo fan to a Tivo foe PDQ.


Why do you think you'll have to pay two fees? If Dish ever does come to terms on this, I'd guess it'd be like the D* deal, you pay one fee to your provider and they send a rake off to TiVo. Only one fee.


----------



## ZeoTiVo

restart88 said:


> Actually I did and I'm still not sure how this actually will shake out, as some have said the "work-around" may or may not be acceptable to the judge or Tivo. At least that's my understanding.


well that understaning is correct. The injunction was imposed more than a year ago that would turn off certain models (the VIP line was not out so not included). So your initial statemnet "a judge just ordered all but the VIP 622 offline" was off the mark.

Also you seemed to blame TiVo squarely and only whne in fact it was DISH that crossed the legal line and DISH that has dragged the thing out and thumbing its nose at the judge over the injunction versus just making a business deal with TiVo to continue to provide you, the customer, a known good product inb the DVR without having to kludge it up to try and get around paying a rightful sum for use of TiVo intellectual property. Multiple courts have ruled that it is DISH that has willfully ignored decent business dealings in the form of finding them in vioaltion of willfull infingement and DISH is still doing it even now.

How this is somehow TiVo incs. fault that DISH dealt from the bottom of the deck I do not see.


----------



## PrincetonTech

Hew said:


> Dish stole TiVo patents... Why should TiVo be blamed for Dish's crime? The reason why Dish was offering free dvr service is to try and put TiVo out of business, and it almost worked. That also explains why Dish dragged its feet for sooo long, they must have been hoping that TiVo management would throw in the towel or be bad enough to put the company in bankruptcy.
> 
> In reallity, Dish with treble damages could end up owing TiVo around 750 million.
> 
> Here's another question, what would tivo do with that money anyone? Buy Circuit City?


The initial public offering of Tivo stock raised approximately 1 billion dollars. They have now burned through all but approximately 100 million of it. The 750 million would start the clock anew and then Tivo will go after other infringing companies such as the many cable TV DVR thieves. Tivo is now set to attain their rightful place and begin making profits, once more and more of the thieves are punished for their thievery. New law suits will be resolved much more quickly now that the precedent has been set.


----------



## rainwater

PrincetonTech said:


> The 750 million would start the clock anew and then Tivo will go after other infringing companies such as the many cable TV DVR thieves.


I guess you mean cable companies other than Comcast or Cox? Even if they do, there's no guarantee it will mean anything to TiVo's bottom line. AFAIK, there has been no proof that cable company dvrs violate any of TiVo's patents.


----------



## Hew

rainwater said:


> I guess you mean cable companies other than Comcast or Cox? Even if they do, there's no guarantee it will mean anything to TiVo's bottom line. AFAIK, there has been no proof that cable company dvrs violate any of TiVo's patents.


What about Microsoft? They've got DVR software embedded in all Windows XP PC's with their media center. I'm not a technical guy, so could someone please tell me if this patent applies to Microsoft's software? If you are able to watch one program while recording another, I think it should. How many hundreds of millions of pc's have XP?

Also, Motorola, Sci Atl, NDS(Todays current DVR for DirecTV), Time Warner, Cablevision.....

There are many who could be included.


----------



## timckelley

So now that the injunction is in full force, Echostar is thumbing their nose at it, telling TiVo to F off?  They should suffer onerously for their behavior in all this.


----------



## Hew

What should TiVo do if they get the max amount of 750 million? 

I say they should buy an ad during the superbowl and show just how hard headed Dish's CEO is. Get a caveman from the geico commercial in a suit, act as Dish's CEO, and have him reject the fact that the world is round. 

Sure it will be a waste of time and money, but it will make me happy.

Anyone else?


----------



## rainwater

Hew said:


> If you are able to watch one program while recording another, I think it should.


Its a common misconception that this is the case.


----------



## samo

PrincetonTech said:


> The initial public offering of Tivo stock raised approximately 1 billion dollars. They have now burned through all but approximately 100 million of it. The 750 million would start the clock anew and then Tivo will go after other infringing companies such as the many cable TV DVR thieves. Tivo is now set to attain their rightful place and begin making profits, once more and more of the thieves are punished for their thievery. New law suits will be resolved much more quickly now that the precedent has been set.


What a nuisance post! Staring with order of magnitude error in a first sentence and ridiculous statement in a last. It is well below minimum quality standards even for stock-board trolls.


----------



## PrincetonTech

samo said:


> What a nuisance post! Staring with order of magnitude error in a first sentence and ridiculous statement in a last. It is well below minimum quality standards even for stock-board trolls.


Sorry about that. When I said Tivo raised 1 billion in their initial public offering I was quoting from a poster on this very forum who posted that about 700 posts ago. I assumed he knew what he was talking about.

I just checked, in the initial public offering Tivo sold 5.5 million shares at $16 for a total of 88 million dollars. A check of their most recent quarterly filing shows that in cash and short term investments they currently stand at 82 million dollars. So that makes the current picture better. They are about where they started some eight years ago and not in danger of going out of business. The DVR thieves have hurt Tivo however and it does appear that Tivo will have a cash burn rate of approximately 62 million over the past 12 months.

So roughly speaking, it looks like they have enough to keep them going for approximately 1.5 years. Once they receive at least 250 million from Dish they will have more cash than they have ever had.

I do not believe that my last statement was ridicules. Now that the courts have been through all the technical details and are a matter of proven record, future lawsuits that Tivo brings against cable TV companies will be much easier for Tivo to prove.


----------



## ZeoTiVo

PrincetonTech said:


> Sorry about that.


Are you sorry enough to stick to one id and not change it every other week. Your behavior on this board is willfully outside the rules and you clearly try and hide your identity and thus hide your agenda. It is shameful.


----------



## PrincetonTech

rainwater said:


> I guess you mean cable companies other than Comcast or Cox? Even if they do, there's no guarantee it will mean anything to TiVo's bottom line. AFAIK, there has been no proof that cable company dvrs violate any of TiVo's patents.


To your question, yes.

Two court trials found Dish infringing on Tivo's time warp patent. Not on the hardware but on the software. In other words, Tivo is the Microsoft of DVR's in relation to the software that enables Time warp features. Nobody disputes that approximately 93 percent of the entire world uses Microsoft Windows as their computer operating system. Tivo's software is an operating system.

Dish has been making DVR's for a long time, as far as I know, longer than any cableTV DVR. It is logical to assume that since Dish has been found to be in violation of Tivo's patent that virtually every DVR that has time warp features, also infringes.

Up until recently, the world has not paid any attention to the magnitude of thievery that has been perpetrated by Dish and cable TV companies. Now the world is waking up to the fact that you cannot illegally use patents without receiving punishment. In regards to this Dish lawsuit, the floodgates have now been opened wide.

A DVR without time warp features is a DVR not worth owning.


----------



## HDTiVo

Now that TiVo has already collected $750M  and is well on its way down easy street to collecting several billion $s more  , we need to abandon this thread for a new one titled:

*Coverage of WTF TiVo is Doing with All the Money*


----------



## PrincetonTech

Hew said:


> What about Microsoft? They've got DVR software embedded in all Windows XP PC's with their media center. I'm not a technical guy, so could someone please tell me if this patent applies to Microsoft's software? If you are able to watch one program while recording another, I think it should. How many hundreds of millions of pc's have XP?
> 
> Also, Motorola, Sci Atl, NDS(Todays current DVR for DirecTV), Time Warner, Cablevision.....
> 
> There are many who could be included.


According to this, it does support recording a show while watching a previously recorded show.

http://www.microsoft.com/windows/products/winfamily/mediacenter/getstarted/tuners-remotes.mspx


----------



## PrincetonTech

timckelley said:


> So now that the injunction is in full force, Echostar is thumbing their nose at it, telling TiVo to F off? They should suffer onerously for their behavior in all this.


I have seen this kind of thing play out before, involving other companies. Soon, Dish will be found to be in contempt of the courts ruling. That will make it so that the court will mandate a stiff penalty that will be based on a certain dollar amount per day, for each day of contempt of court. The courts are not going to tolerate this, as it would make a mockery of the two court trials.


----------



## Curtis

PrincetonTech said:


> According to this, it does support recording a show while watching a previously recoded show.
> 
> http://www.microsoft.com/windows/products/winfamily/mediacenter/getstarted/tuners-remotes.mspx


Boats and cars both go to Key West but they don't take the same route.


----------



## PrincetonTech

Some people have stated that the treble damages seem to be off the table. It now seems to me that with Dish willfully infringing that they might be back on the table. What say you? I hope to wake up some day soon and see a story that reads something like this.

The court has ruled that because Dish willfully infringed on Tivo's patent, both during the trial and after the trial, Tivo has been awarded 750 million dollars in damages.

http://en.wikipedia.org/wiki/Treble_damages


----------



## PrincetonTech

Curtis said:


> Boats and cars both go to Key West but they don't take the same route.


Curtis, you have a long standing history of showing that you are knowledgeable about many things. I do respect you and I am not looking for an argument. I do understand what you are saying, but isn't that just an over simplification argument made by some other posters here? Here is what I mean.

The issue you refer to has to do with hardware and audio and video signal routing. Dish was found NOT to be infringing on the Tivo hardware, just the software. I know issues are tough to figure out, however I do think that some of the arguments here are misguided due to Dish owners skewing the argument. Are my statements above in regards to the software issue not valid?


----------



## sbiller

PrincetonTech said:


> Some people have stated that the treble damages seem to be off the table. It now seems to me that with Dish willfully infringing that they might be back on the table. What say you? I hope to wake up some day soon and see a story that reads something like this.
> 
> The court has ruled that because Dish willfully infringed on Tivo's patent, both during the trial and after the trial, Tivo has been awarded 750 million dollars in damages.
> 
> http://en.wikipedia.org/wiki/Treble_damages


Although I probably agree with many of you the PrincetonTech is probably a Stock Troll, I think many of the points he is making are valid. In the spirit of full disclosure, I do hold a small position in TiVo which is already doing pretty well


----------



## Curtis

PrincetonTech said:


> Some people have stated that the treble damages seem to be off the table. It now seems to me that with Dish willfully infringing that they might be back on the table. What say you? I hope to wake up some day soon and see a story that reads something like this.


Read the first paragraph of the Amended Final Judgment and Permanent Injunction. It is provided in the recent Dish notice to retailers. Judge Folsom ruled that since Dish did not act in bad faith he didn't award treble damages. He can't/won't change that decision. Starting on Friday, Dish appears to be acting in bad faith though so damages accruing since last Friday could be trebled.


----------



## Curtis

PrincetonTech said:


> isn't that just an over simplification argument made by some other posters here?


The idea of recording and playing at the same time cannot be patented. A particular process of doing it can be patented. So can other processes.


----------



## PrincetonTech

sbiller said:


> Although I probably agree with many of you the PrincetonTech is probably a Stock Troll, I think many of the points he is making are valid. In the spirit of full disclosure, I do hold a small position in TiVo which is already doing pretty well


My full disclosure. Although some have accused me of being a stock troll, I have never been a stock holder of Tivo. Will I buy a position in Tivo if they get on solid financial ground due to this Dish settlement? Probably, however, my main concern is that I have spent about $3,500 on various Tivo's and multiple 1 TB hard drive upgrades and I seriously want to see Tivo become a strong company that will survive.

It is not just about the money. My eight years of Tivo's have been virtually flawless and I am very happy with them. I would hate to have to switch if Tivo goes out of business.


----------



## ZeoTiVo

PrincetonTech said:


> Some people have stated that the treble damages seem to be off the table. It now seems to me that with Dish willfully infringing that they might be back on the table. What say you? I hope to wake up some day soon and see a story that reads something like this.
> 
> The court has ruled that because Dish willfully infringed on Tivo's patent, both during the trial and after the trial, Tivo has been awarded 750 million dollars in damages.
> 
> http://en.wikipedia.org/wiki/Treble_damages


will you just stop with these willfully stupid posts.
TiVo themselves took treble damages off the table in the appeal process to make it more streamlined and assure a smooth ride through the higher court.
That was covered in this very same thread during your netsurfer ID.
Curtis notes that Judge Folsom might go for treble damages on actions since the injunction came into effect April 18th - but that is a very different matter and not in the 750 million realm.


----------



## fasTLane

> It is not just about the money. My eight years of Tivo's have been virtually flawless and I am very happy with them. I would hate to have to switch if Tivo goes out of business.


+1


----------



## ZeoTiVo

PrincetonTech said:


> The issue you refer to has to do with hardware and audio and video signal routing. Dish was found NOT to be infringing on the Tivo hardware, just the software.


wrong
the higher court remanded the hardware back to the lower court to be retried upon different standards. there was no finding by the higher court in regards to the actual infringement or not of the hardware.

In all your various IDs you have been shown time and agian to have even basic facts wrong. I have no idea why anyone would consider the junk you post as nothing more than your own private agenda with no regard for discerning what is reality.


----------



## PrincetonTech

Curtis said:


> Read the first paragraph of the Amended Final Judgment and Permanent Injunction. It is provided in the recent Dish notice to retailers. Judge Folsom ruled that since Dish did not act in bad faith he didn't award treble damages. He can't/won't change that decision. Starting on Friday, Dish appears to be acting in bad faith though so damages accruing since last Friday could be trebled.


Thanks Curtis. I just got done reading it in its entirety. You are correct.

Now, on to a discussion of another matter. This thread has a pretty long history of adding up the damages. A few months back people were saying that they were mounting up at about 6.4 million per month. They were also saying a few months back that the amount had grown to approximately 220 million.

Now, here is what I just read. A tad short of 90 million plus interest from August 1, 2006 to the present. So lets say 21 months times 4 percent.

4 percent per year divided by 12 months times 21 months = 7 percent. That would mean that with interest the total would be about 96 million.

So where are people getting this 220 million dollar figure from? I can only guess that the additional amount comes from 21 months having passed so that the 90 million figure has actually grown. Where can I find more info on that particular subject?

So I guess it would go like this, assuming the 6.4 million dollar per month is correct.

21 months x 6.4 million = 134.4 million + 89.7 million + 7 percent interest = 239.8 million. That figure is only an approximation because the 7 percent interest would not have had 21 months to accrue on all the sums of money.

But if all of the above is fairly accurate, then it looks like we can expect to see Tivo receive at least 230 million dollars.


----------



## Curtis

$32.66 million in the judgment was for the 192,708 unit one-time payment. Those are treated as lifetime subscriptions. No royalties. 

The judge awarded TiVo $10.3 million additional damages in 08-06 to cover the time period from the verdict (4-13-06) until 07-31-06. That figures out to about $3 million per month for royalties.


----------



## PrincetonTech

ZeoTiVo said:


> will you just stop with these willfully stupid posts.
> TiVo themselves took treble damages off the table in the appeal process to make it more streamlined and assure a smooth ride through the higher court.
> That was covered in this very same thread during your netsurfer ID.
> Curtis notes that Judge Folsom might go for treble damages on actions since the injunction came into effect April 18th - but that is a very different matter and not in the 750 million realm.


Curtis already cleared up the matter for me. You are very good at handing out insults, but let me remind you that "stupid" is only stupid until new information is brought to light. Just because I did not know something does not mean you have the right to insult me or assume that I knew something which I did not know. I did not know that Tivo took the treble damages off the table. At any rate, if the judge thought they applied then he with have ordered it. Curtis pointed out that the judge did not order it. I suggest you learn to be more civil and refrain from calling people stupid. That is a personal attack and against the rules. Just because I am not up to date does not give you the right to fling insults.


----------



## PrincetonTech

ZeoTiVo said:


> the higher court remanded the hardware back to the lower court to be retried upon different standards


Does that mean Tivo will have to wait for that trial to end before they can get their money?


----------



## PrincetonTech

Curtis said:


> $32.66 million in the judgment was for the 192,708 unit one-time payment. Those are treated as lifetime subscriptions. No royalties.
> 
> The judge awarded TiVo $10.3 million additional damages in 08-06 to cover the time period from the verdict (4-13-06) until 07-31-06. That figures out to about $3 million per month for royalties.


Thanks again Curtis. So the new math.

89.7 million as of 07/31/06. Plus 21 months x 2.94 million = 61.74 million for a sum of 151.44 million. Plus approximately 3.5 percent interest on the entire sum = 156.74 million.

I think the judge will probably ask for updated Dish DVR subscriber numbers to adjust the figure but it looks like we can realistically figure on at least a 157 million dollar court award.


----------



## timckelley

PrincetonTech said:


> A DVR without time warp features is a DVR not worth owning.


This quote seems to seriously implicate PrincetonTech as being aka netsurfer, because IIRC, netsurfer used to often make this exact statement, word for word. I actually compliment both netsurfer and PrincetonTech for their civil tones while posting, but I thought that multiple IDs was seriously forbidden here.


----------



## ZeoTiVo

PrincetonTech said:


> Just because I did not know something does not mean you have the right to insult me or assume that I knew something which I did not know.


 I never used any name calling and I specifically point out that your *posts* are junk. For all I know you would be a great next door neighbor, but as far as a poster in this community you are a troll with your own agenda.


> I suggest you learn to be more civil and refrain from calling people stupid. That is a personal attack and against the rules. Just because I am not up to date does not give you the right to fling insults.


again I never called *you* stupid, but that is like a troll to twist things to your agenda. I suggest you abide by the rules of this forum and stick to one ID. But you have already repeatedly violated that rule and it clearly implies you wish to hide yourself from the community and are not able to stand by the posts you have made in the past and intend to make in the future.
you have figured out how to tone things down and fly under the moderator radar but at the end of the day *you are still a multiple User ID yahoo stock Troll*. if that is a personal insult to you then I again suggest you change the behavior. I certainly find it insulting to the community at large here.


----------



## usnret

Just for my info PrincetonTech, why do you change your ID a lot???


----------



## PrincetonTech

ZeoTiVo said:


> I suggest you abide by the rules of this forum and stick to one ID. But you have already repeatedly violated that rule and it clearly implies you wish to hide yourself from the community and are not able to stand by the posts you have made in the past and intend to make in the future


You say "it clearly implies you wish to hide yourself from the community and are not able to stand by the posts you have made in the past and intend to make in the future"

Implies is the key word above. If I explain some things, then maybe you can understand that the above is not the truth. Then maybe we can call a truce. After I explain, then you will understand that I have *not been able to use two identities at the same time.*

One, when I first signed up for this message board I had no intention of signing up with more than one ID.

Two, here is what happened. At some point after I signed up, I forgot my user name and password. So I signed up with a different user name and a vindictive person spotted that and reported me to the moderators, who then banned my new ID.

When you get banned it says something like this: "You have been banned. Reason, multiple ID's. When will ban be lifted? Never.

A permanent ban is pretty harsh for simply having two ID's so I cannot say I agree with that policy and I do believe it should be changed. A five day ban or something like that.

When I signed up for my third identity, some vindictive person got on their high horse again, and again I was banned. It has now happened about ten times but it only takes me a few minutes to change my IP address and sign up again.

So I am being punished for making two ID's in the very beginning but this vindictive person keeps reporting me so I have to keep making new ID's. It has nothing to do with the reasons you mention above.

Now I will await to see if this vindictive person reports me again. I have not picked out my new user name yet and I have unlimited IP addresses available to me. Will I have to pick a new user name or will you call a truce? That is a rhetorical question as I fully expect you will report me but maybe you will decide to be less vindictive now that you know the full story.


----------



## timckelley

According to board policy, if you get banned because of multiple IDs, and then you circumvent it by finding a new IP address, it's considered harassment, and they may choose to deal with it as such. Though I'm not sure if this means they'd criminally prosecute you or what.


----------



## PrincetonTech

timckelley said:


> According to board policy, if you get banned because of multiple IDs, and then you circumvent it by finding a new IP address, it's considered harassment, and they may choose to deal with it as such. Though I'm not sure if this means they'd criminally prosecute you or what.


Before I get banned again I will say this. They need to seriously rethink this permanent ban stuff. Whoever wrote that rule was not thinking about things like multiple users on the same computer. One is logged in and another goes to post something but does not realize they are posting under the wrong ID, stuff like that.

So they ban the IP and both people lose their ability to read Tivo community content. It makes no sense. The permanent ban should be for five days instead.


----------



## dswallow

PrincetonTech said:


> Before I get banned again I will say this. They need to seriously rethink this permanent ban stuff. Whoever wrote that rule was not thinking about things like multiple users on the same computer. One is logged in and another goes to post something but does not realize they are posting under the wrong ID, stuff like that.


Why don't you just proactively contact a moderator or the forum owner and resolve this? If the situation is as you describe I can't see it being an issue.


----------



## old7

dswallow said:


> Why don't you just proactively contact a moderator or the forum owner and resolve this? If the situation is as you describe I can't see it being an issue.


I agree, perhaps you can have your original ID reactivated.


----------



## timckelley

old7 said:


> I agree, perhaps you can have your original ID reactivated.


Was the original ID, by chance, guilty of stock talk violations? If so, maybe he can indeed get that ID reactivated, but he might need to have a strike on his record. (Two more, and he gets permanently banned.)


----------



## PrincetonTech

dswallow said:


> Why don't you just proactively contact a moderator or the forum owner and resolve this? If the situation is as you describe I can't see it being an issue.


Over the past 12 years I have been banned a couple of times at different message boards. Their bans were always for hours or days, never permanent. I think the rules here are way too strict so I do not believe I could convince them to change their rules.


----------



## PrincetonTech

old7 said:


> I agree, perhaps you can have your original ID reactivated.


I cannot even remember what it was.


----------



## Adam1115

PrincetonTech said:


> Implies is the key word above. If I explain some things, then maybe you can understand that the above is not the truth. Then maybe we can call a truce. After I explain, then you will understand that I have *not been able to use two identities at the same time.*
> 
> One, when I first signed up for this message board I had no intention of signing up with more than one ID.


No, but you HAVE purposely followed people around and harassed them. A week after people complain about you, put you on ignore, here comes a new ID stalking people.

You even made it personal with ME mentioning person threads about my medical problems in completely unrelated threads.

Your behavior is beyond being banned for an opinion and registering a new name.


----------



## PrincetonTech

Adam1115 said:


> No, but you HAVE purposely followed people around and harassed them. A week after people complain about you, put you on ignore, here comes a new ID stalking people.
> 
> You even made it personal with ME mentioning person threads about my medical problems in completely unrelated threads.
> 
> Your behavior is beyond being banned for an opinion and registering a new name.


There is a difference between reading a thread and responding to it and "purposely followed" or "stalking". It is called a conversation. Sorry if you misinterpret.

Medical problems? I do not know what you are talking about. I have no recollection of that.


----------



## herdfan

PrincetonTech said:


> then Tivo will go after other infringing companies such as the many cable TV DVR thieves....... New law suits will be resolved much more quickly now that the precedent has been set.


But the question will be who do they go after? The cableco's or the box manufacturers? In DISH's case, they are one and the same, but for cablecos, do you go after Time Warner or Motorola/SA?

I woud think it would be the entity that wrote the DVR software.


----------



## PrincetonTech

herdfan said:


> But the question will be who do they go after? The cableco's or the box manufacturers? In DISH's case, they are one and the same, but for cablecos, do you go after Time Warner or Motorola/SA?
> 
> I woud think it would be the entity that wrote the DVR software.


I think an argument could be made that Motorola would not have made the box if not for Time Warner asking them to build it. In my opinion, I think Tivo could go after both companies.


----------



## HDTiVo

Well, this thread is WAY over 1000 posts, so it was time for a new one anyway; right Zeo? 

Let me just say that if someone is not very informed on a subject that I believe it is better they READ and ASK simple, straightforward questions, and NOT make DECLARATIVE statements that ultimately lead to misinformation, confusion and urban legend.


----------



## PrincetonTech

To get back on topic, can anyone say what we are waiting for next? Or is it just a random thing that all of a sudden one day we hear that Dish has been slapped with contempt of court?


----------



## ZeoTiVo

> PrincetonTech said:
> 
> 
> 
> Before I get banned again I will say this. They need to seriously rethink this permanent ban stuff. Whoever wrote that rule was not thinking about things like multiple users on the same computer. One is logged in and another goes to post something but does not realize they are posting under the wrong ID, stuff like that.
> 
> 
> 
> 
> 
> 
> dswallow said:
> 
> 
> 
> Why don't you just proactively contact a moderator or the forum owner and resolve this? If the situation is as you describe I can't see it being an issue.
> 
> Click to expand...
Click to expand...

because it was not quite as harmless as he makes it out to be. his original ids I recall were Bob Neth and then George Webster and then something and then Netsurfer and a bunch in the middle then PT30 and now he comes back here as PrincetonTech. In other IDs he has denied being a different poster and he has even gone into Happy Hour and trolled up threads in there. Edit To Add - oh yah, I forgot he trolled up at least one DirecTV thread as well where they talked about what it meant that Direct bought Replay. He tried his TiVo will sue them for big cash FUD there as well. Many DirectTV forum members were unhappy about that.

He has repeatedly posted the FUD about all DISH DVRs being covered by this and how TiVo will be able to sue everyone for patents. He has admitted, after I think Black Betty called him on it, to being from the yahoo stock message boards in an early Identity. Like all stock trolls He starts with a kernel of truth in TiVo incs. strong patent and the win against DISH and keeps coming back mainly to push some shorting of DISH or upping of TiVo. If he had instead been trying to push TiVo stock down and berating TiVo the whole board would be up in arms. Just recently he tried again to claim that TiVo would get 750 million when he knew very well that was not the truth. If not for Curtis and his reputation as having the facts of the case well in hand this troll would still be spouting the 750 million number.

This is not some innocent - oh I forgot my password but I would like to keep participating out of genuine interest. This has gone on at least 10 or 12 IDs and no normal poster would go that far without either giving up or else having contacted the mods a long time ago. Further we can not even put him on ignore because next week it will be some new ID and the ignore list is only so long 

*I stand by my statement that at the end of the day this is just some multiple ID yahoo stock board troll come to FUD the place up.* I find it insulting to the whole community and would like the behavior to stop. Otherwise all the mods can do is take a hard line on stock talk again and have to trample on innocent financial results of Tivo threads and so forth or else we have to put up with the continuing FUD of this poster.

for the record I reported the multiple IDs on the first 2 or 3 and then found out he spoofed IPs so stopped bugging the mods over this and elected to post the truth in reply instead.

based on this page of the thread you can all decide who stands beside each and every one of their posts and who wished to lie and cover their tracks.


----------



## PrincetonTech

Hey Zeo, after your post #1256 it appears that all you want to do is sling mud. The topic is called Continued Coverage of TiVo/Echostar Trial . Do you have anything to say about the topic or not?


----------



## ZeoTiVo

HDTiVo said:


> Well, this thread is WAY over 1000 posts, so it was time for a new one anyway; right Zeo?


 it would be best for the hardware and BB software to start a new one but I am just part of the community so the operator can start a new thread if they want.


> Let me just say that if someone is not very informed on a subject that I believe it is better they READ and ASK simple, straightforward questions, and NOT make DECLARATIVE statements that ultimately lead to misinformation, confusion and urban legend.


My belief is that this multiID poster wants very much to mislead and spread FUD. So very good advice that is sure not to be followed except as a way to try look as innocent as he can to continue his agenda as long as he can.


----------



## ZeoTiVo

PrincetonTech said:


> Hey Zeo, after your post #1259 it appears that all you want to do is sling mud. The topic is called Continued Coverage of TiVo/Echostar Trial . Do you have anything to say about the topic or not?


You admitted to the charade and then try and continue it. 
HINT: I am the one who can stand by each and every one of my posts


----------



## PrincetonTech

ZeoTiVo said:


> Just recently he tried again to claim that TiVo would get 750 million when he knew very well that was not the truth. If not for Curtis and his reputation as having the facts of the case well in hand this troll would still be spouting the 750 million number.


You are a very bitter person who loves picking fights. You know very well that I changed my mind as soon as Curtis explained otherwise. You misrepresent facts to further your bitter agenda.

"Further we can not even put him on ignore because next week it will be some new ID and the ignore list is only so long "

If vindictive people would stop reporting me then I could keep one ID.

Care to get back on topic or do you insist on continuing to spout vindictive stuff?


----------



## PrincetonTech

ZeoTiVo said:


> You admitted to the charade and then try and continue it.
> HINT: I am the one who can stand by each and every one of my posts


Try to continue charade? What? Wow, now you are really ranting. You are even more bitter and vindictive than I thought. I am done responding to you. Spew away.


----------



## Adam1115

http://www.tivocommunity.com/tivo-vb/showthread.php?p=6001464#post6001464



justapixel said:


> From this point forward, there will be *no personal attacks, name-calling, stock discussion *or any other rules broken in this thread.
> 
> It is too large for me to go through and remove every instance. I also do not want to have to close the thread since it seems to be a topic of interest. However, if ONE post past mine has a flame in it, then I will shut this topic down.
> 
> Forum rules are here: http://www.tivocommunity.com/tivo-vb/showthread.php?t=127146


----------



## ZeoTiVo

PrincetonTech said:


> You are a very bitter person who loves picking fights.


Sorry - I am neither bitter nor looking to pick a fight. Just posting the truth.



> Care to get back on topic or do you insist on continuing to spout vindictive stuff?


you changed the topic when you changed IDs and came back here posting the same wrong stuff as you did under other multiple IDs in the very same thread.

Should we contact the moderators to sort this out?


----------



## PrincetonTech

Ok Zeo, I just added you to my ignore list. Congratulations, you are the very first person I have ever put on the ignore list. You are now free to continue your rant unimpeded by me.


----------



## rainwater

PrincetonTech said:


> Ok Zeo, I just added you to my ignore list. Congratulations, you are the very first person I have ever put on the ignore list. You are now free to continue your rant unimpeded by me.


He's the first on this account? Or the first on all of the accounts you created here?


----------



## morac

PrincetonTech said:


> I cannot even remember what it was.


You don't need to know your username or password to recover either of them. All you need is your email address. So not knowing your old username is not an excuse for creating a new username, unless you change your email address so often that you can't remember them.


----------



## timckelley

By the way, IIRC, once the board ownership changed hands to Capable, inc., the 1000 post limit rule was abolished. So I think it's okay to keep posting to this long thread.


----------



## bidderman9

Can we get back to the topic at hand?

Either report him or move on....

Please ?!


----------



## terpfan1980

timckelley said:


> By the way, IIRC, once the board ownership changed hands to Capable, inc., the 1000 post limit rule was abolished. So I think it's okay to keep posting to this long thread.


If you check the Admin areas you'll see that the 1000 post limit is still requested and in effect. With that said, some threads continue on (such as this one seems to have...)


----------



## rainwater

bdowell said:


> If you check the Admin areas you'll see that the 1000 post limit is still requested and in effect. With that said, some threads continue on (such as this one seems to have...)


It seems most of the "rules" in place before the change over have been ignored so it isn't surprising.


----------



## JimSpence

It seems to me that the original topic of this thread is no longer relevant, so it should be closed. Just sayin'.


----------



## fasTLane

nah, just leave it open until the next real news hits. Shouldn't be too long now.


----------



## herdfan

fasTLane said:


> nah, just leave it open until the next real news hits. Shouldn't be too long now.


The problem is once real news hits, this place will go nuts. Perhaps a new thread titled: _Enforcement of Injunction against DISH/SATS_.


----------



## ZeoTiVo

herdfan said:


> The problem is once real news hits, this place will go nuts. Perhaps a new thread titled: _Enforcement of Injunction against DISH/SATS_.


Good Title just add in parens (continuing DISH trial coverage) and you have the new thread. :up:


----------



## usnret

Good idea and if/when the multiple ID fudder chimes in, sound the alarm so that we can block "it".


----------



## HDTiVo

usnret said:


> Good idea and if/when the multiple ID fudder chimes in, sound the alarm so that we can block "it".


But can we start threads faster than clueless people can post erroneous assertions?


----------



## Curtis

The appeals court ruling made it to the district court docket today.


----------



## ZeoTiVo

Curtis said:


> The appeals court ruling made it to the district court docket today (thanks for the info Mainer).


can you tell us non-legal types what that means, please


----------



## Curtis

ZeoTiVo said:


> can you tell us non-legal types what that means, please


Well, it means that Judge Folsom got the case back today. The motions floodgate has opened.


----------



## timckelley

Let's hope that Judge Folsom rules that Echostar receive the death penalty, by beheading.


----------



## ZeoTiVo

Curtis said:


> Well, it means that Judge Folsom got the case back today. The motions floodgate has opened.


so it means Judge Folsom can start issuing legal documents and we see where all this is headed? Cool. popcorn time


----------



## restart88

ZeoTiVo said:


> well that understaning is correct. The injunction was imposed more than a year ago that would turn off certain models (the VIP line was not out so not included). So your initial statemnet "a judge just ordered *all but the VIP 622 offline*" was off the mark.
> 
> Also you seemed to blame TiVo squarely and only whne in fact it was DISH that crossed the legal line and DISH that has dragged the thing out and thumbing its nose at the judge over the injunction versus just making a business deal with TiVo to continue to provide you, the customer, a known good product inb the DVR without having to kludge it up to try and get around paying a rightful sum for use of TiVo intellectual property. Multiple courts have ruled that it is DISH that has willfully ignored decent business dealings in the form of finding them in vioaltion of willfull infingement and DISH is still doing it even now.
> 
> How this is somehow TiVo incs. fault that DISH dealt from the bottom of the deck I do not see.


Read it again. I didn't say 622 I said the other board was saying all but the VIPs.

What I am ticked about is that rather than working this thing out in the consumers' best interest the requested injunction, as understood, renders my DVR functions dead. I bought my 508! So an immediate termination of function devalues what I paid for. But this bit about not paying my fair share? I DO pay for Tivo service. I just happen to like using the UHF remote for other room viewing. I also record some things to the DVR for all those times the Tivo crashes. If I get upgraded to a newer receiver I would have to pay the monthly DVR fee for it (even though my unit was purchased as a fee free to me unit) and for my Tivo, so I'd be paying twice.

That last bit, like I said I have no problem with 2 companies working out what amounts to a financial settlement. I take exception to it hurting me when I did nothing wrong.


----------



## Hew

Curtis said:


> Well, it means that Judge Folsom got the case back today. The motions floodgate has opened.


So does this mean that the judge will rule on the "workaround" within 24 hours?

Or does it mean that this case is on his desk right now and he is going to call both parties to figure out if the workaround is legal, which could take over a week.

For some reason the people @ engadget are saying that DISH customers with DVR's don't need to worry, and that their dvr's are all safe just as long as they have the workaround software.


----------



## herdfan

restart88 said:


> That last bit, like I said I have no problem with 2 companies working out what amounts to a financial settlement. I take exception to it hurting me when I did nothing wrong.


Then the customers need to start calling Charlie's office and demanding that he settle this thing.


----------



## herdfan

Hew said:


> For some reason the people @ engadget are saying that DISH customers with DVR's don't need to worry, and that their dvr's are all safe just as long as they have the workaround software.


Because that is what DISH told them.

DISH also said their DVR's didn't infringe in the first place. How is that working out for them?


----------



## Curtis

Hew said:


> So does this mean that the judge will rule on the "workaround" within 24 hours?
> 
> Or does it mean that this case is on his desk right now and he is going to call both parties to figure out if the workaround is legal, which could take over a week.
> 
> For some reason the people @ engadget are saying that DISH customers with DVR's don't need to worry, and that their dvr's are all safe just as long as they have the workaround software.


I'm guessing the first thing he will do is impose a fine for not complying with the injunction. They should have shut down the infringing DVRs and advised their dealers to stop selling them.

"Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products"

"Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


----------



## BlackBetty

I am not sold on the fact that the injunction is in place right now. I know dish's letters state otherwise. But I would think that the case would have to go back to Folsom and then he would state whether the injunction is currently in place or if it starts up after a set amount of time.


----------



## btwyx

restart88 said:


> What I am ticked about is that rather than working this thing out in the consumers' best interest the requested injunction, as understood, renders my DVR functions dead.


Why are you ticked at TiVo? Its Dish that totally refuses to do the "working this thing out in the consumers' best interest". The injunction is just the stick to beat some sense into Dish, TiVo doesn't want the DVRs shut down, they want the DVRs to carry on working and Dish to pay them.


----------



## GoHokies!

timckelley said:


> Let's hope that Judge Folsom rules that Echostar receive the death penalty, by beheading.


I think that the Navy should be allowed to use E*'s birds as more target practice for their SM-3s. We've gone like a whole month without shooting a satellite down! 



HDTiVo said:


> But can we start threads faster than clueless people can post erroneous assertions?


Dude, that would be like going faster than the speed of sound!

"When this thread hits 88 posts per minute... you're going to see some serious $H*@T!!!"

Restart88: Not understanding the hate on Tivo - how do you propose that Dish be forced to work this out with Tivo without harming the you?


----------



## Curtis

BlackBetty said:


> I am not sold on the fact that the injunction is in place right now. I know dish's letters state otherwise. But I would think that the case would have to go back to Folsom and then he would state whether the injunction is currently in place or if it starts up after a set amount of time.


Well, the injunction is in place now. That is certain. Judge Folsom didn't have to lift a finger. In fact he couldn't have started it back up if he wanted to. The appeals court wrote the stay so they are the ones that ended it. There are certain things in the injunction that went into effect immediately last Friday such as the prohibition of sales. The 30 day requirement to turn off the subscriber DVRs isn't as certain. It may require clarification.


----------



## Greg Bimson

Curtis said:


> The 30 day requirement to turn off the subscriber DVRs isn't as certain. It may require clarification.


No, there isn't a 30 day requirement:


> Defendants are hereby *FURTHER ORDERED* to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with and end user or subscriber.


Thirty days after the issuance of the given order, which was back in September, 2006.

We've seen the letters from DISH to their resellers. DISH believes they no longer infringe because of the new software. While it may be true, DISH is not in compliance with the injunction.


----------



## SleepyBob

Greg Bimson said:


> No, there isn't a 30 day requirement:Thirty days after the issuance of the given order, which was back in September, 2006.


Which was stayed. I don't think it's nearly as clear as you claim that they don't still have 30 days from reinstatement to comply, or at least the 15-20 days that were remaining before the stay.

And that is a separate issue from the "we're no longer infringing so we don't have to shut them off" stance that they are taking.


----------



## old7

SleepyBob said:


> Which was stayed. I don't think it's nearly as clear as you claim that they don't still have 30 days from reinstatement to comply, or at least the 15-20 days that were remaining before the stay.
> 
> And that is a separate issue from the "we're no longer infringing so we don't have to shut them off" stance that they are taking.


I don't think the judge is going to let them go very far with the "we're no longer infringing so we don't have to shut them off" attempt.


----------



## timckelley

Even if the judge buys the 'no longer infringing' argument, doesn't Echostar still owe TiVo a bunch of money in damages for the days when they were infringing? Surely Echostar has abandoned their story that they never infringed.


----------



## ZeoTiVo

timckelley said:


> Even if the judge buys the 'no longer infringing' argument, doesn't Echostar still owe TiVo a bunch of money in damages for the days when they were infringing? Surely Echostar has abandoned their story that they never infringed.


Echostar can go with any story they want but I think it is around 150 million they owe for infringement up to now

ETA - and Curtis found what Dish thinks it owes (128 million) since DISH does not count up to now but to whenever they downloaded the new software


----------



## Curtis

From 2007 Dish annual Report:

"Litigation expense. During the years ended December 31, 2007 and 2006, we recorded &#8220;Litigation expense&#8221; in the Tivo case of $34 million and $94 million, respectively. The $94 million reflects the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. The $34 million additional expense in 2007 represents the estimated cost of any software infringement prior to the implementation of the alternative technology, plus interest subsequent to the jury verdict. "

This only covers damages up until they supposedly downloaded the work-around.


----------



## Greg Bimson

SleepyBob said:


> Which was stayed. I don't think it's nearly as clear as you claim that they don't still have 30 days from reinstatement to comply, or at least the 15-20 days that were remaining before the stay.


Whoops. I believe you are correct. The stay should have stopped the clock.


----------



## HDTiVo

Curtis said:


> Well, the injunction is in place now. That is certain. Judge Folsom didn't have to lift a finger. In fact he couldn't have started it back up if he wanted to. The appeals court wrote the stay so they are the ones that ended it. There are certain things in the injunction that went into effect immediately last Friday such as the prohibition of sales. The 30 day requirement to turn off the subscriber DVRs isn't as certain. It may require clarification.


So you are coming around to the view that the 30 days has not run out? Are you also coming aroung to the view that while DVR functions could be shut down, the entire box won´t necessarily go dark?

Also you mention the motions will start flying. That´s what I meant when I said this will be an interesting month; with the motions telling us alot about the respective parties`postions. I wonder if motions will appear this week or much closer to the 30 days?


----------



## restart88

This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.

Long story short I just tried to record the current program and it won't record either.

Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.

Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


----------



## ZeoTiVo

restart88 said:


> They didn't have to tell the judge to turn off my DVR.


 They did not tell the judge to do that. They asked for a rightful license fee to make up for the damages done by DISH stealing IP and costing TiVo subscribers. DISH refused to listen to reasonable terms and the JUDGE said OK - here is an injunction then.



> I hate to make any heat of the moment calls or decisions


 and yet here you are making one without any facts. DISH has not turned off the first DVR yet. Whatever problems you are having is not part of this case.


----------



## generalpatton71

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


BLAME DISH FOR STEALING!!!!!!!!!!!!!!!!!!


----------



## dswallow

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


You're going to cancel your TiVo account because your crappy Dish DVR is buggy and unreliable? Yep, good riddance.


----------



## Hew

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


I would also say good riddence. Why are you putting all the blame on TiVo? Why is this such a surprise to you? Haven't we been talking about this for years now with over 2 thousand posts. I guess you must have just thought that the day would never come. Well here is one TiVo owner that is happy DISH is getting what they deserve.


----------



## Hew

So does this mean that all DISH DVR's no longer have DVR functionality? Can someone else who has dish please confirm that they can't schedule a recording.

If this is the case I wonder how many DISH customers will riot in the streets tomorrow. Mr. Ergan, hide.


----------



## ZeoTiVo

Hew said:


> So does this mean that all DISH DVR's no longer have DVR functionality? Can someone else who has dish please confirm that they can't schedule a recording.
> 
> If this is the case I wonder how many DISH customers will riot in the streets tomorrow. Mr. Ergan, hide.


umm - one or two upset people posting rants does not make for DISH turning them off - you can bet the ywill have a beautiful press release out to everyone with an amazing spin on it.
Looks like restart88 could get the rough draft going for them


----------



## Adam1115

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


Dish hasn't turned off any DVR's, their DVR's just suck.

You should get a TiVo. Then this won't happen any more...


----------



## DaveDFW

Adam1115 said:


> Dish hasn't turned off any DVR's, their DVR's just suck.


Is it too much to hope that this is the effect of the "colorably different" software Dish claims to have loaded?   

TTYL
David


----------



## ZeoTiVo

DaveDFW said:


> Is it too much to hope that this is the effect of the "colorably different" software Dish claims to have loaded?
> 
> TTYL
> David


it gomes from "DVR's suck" to "DVRs suck more"


----------



## generalpatton71

ZeoTiVo said:


> it gomes from "DVR's suck" to "DVRs suck more"


I can't wait to see the Jenna Haze ads.


----------



## JimboG

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


Restart88,

Please don't take this the wrong way, because it may sound harsh -- it would be unlawful for you to continue to use a device in a manner that violates Tivo's patent. Tivo's patent means that no one within the United States may use its device or method without Tivo's permission (i.e. a license). Tivo is not require to license this patent to Dish at all if it does not want to.

Now the odds that Tivo will sue you and the other consumers who use infringing Dish Network DVR's for patent infringement are exceedingly slim. That said, if you want to blame anyone for lost functionality on your infringing DVR, blame Echostar. Dish Network ripped off Tivo; Tivo is not the bad guy in this.


----------



## GoHokies!

restart88 said:


> This just happened. I tried to schedule a recording for tonight on my 508 as there's something else on that I also want to see. It won't schedule.
> 
> Long story short I just tried to record the current program and it won't record either.
> 
> Yep! I DO blame Tivo. They didn't have to tell the judge to turn off my DVR. I hate to make any heat of the moment calls or decisions but I am leaning HEAVILY towards a call to Tivo tomorrow morning to cancel my non-contracted unit and will ask what the penalty is on the other.
> 
> Will Tivo care? Nope. Probably will say good riddens, I think. Fine by me!


This post actually made me dumber for having read it, it is completely lacking in any factual or logical basis.

I really have difficulty believing that people actually think this way, but I guess I give people too much credit.


----------



## HDTiVo

JimboG said:


> Tivo is not require to license this patent to Dish at all if it does not want to.


Suppose TiVo made really sucky DVRs and had all the patents. Suppose XXX came out with a great DVR that you all wanted to have, but couldn´t sell it because TiVo would not license the patents.

How would you feel about TiVo then?



GoHokies! said:


> This post actually made me dumber for having read it, it is completely lacking in any factual or logical basis.
> 
> I really have difficulty believing that people actually think this way, but I guess I give people too much credit.


I really have difficulty believing that post made you dumber.


----------



## ChuckyBox

HDTiVo said:


> Suppose TiVo made really sucky DVRs and had all the patents. Suppose XXX came out with a great DVR that you all wanted to have, but couldn´t sell it because TiVo would not license the patents.
> 
> How would you feel about TiVo then?


I would think TiVo had turned into Microsoft.


----------



## ciper

ChuckyBox said:


> I would think TiVo had turned into Microsoft.


I lol'd


----------



## HDTiVo

ChuckyBox said:


> I would think TiVo had turned into Microsoft.


Excellent answer. :up:


----------



## steve614

You are misplacing your anger.
Do you beat your cat when the dog poops on the carpet?


----------



## GoHokies!

HDTiVo said:


> I really have difficulty believing that post made you dumber.


Even when you're at rock bottom, you can always grab a shovel and get to digging.


----------



## ZeoTiVo

and people gave me a hard time for going off topic


----------



## dswallow

ChuckyBox said:


> I would think TiVo had turned into Microsoft.


You misspelled SCO.


----------



## nrc

dswallow said:


> You misspelled SCO.


Not really a valid analogy.

In SCO's case their claim to the rights they were suing over was questionable to begin. They've never proven that those rights were violated even if they were valid. The rights in question weren't their own innovations or technologies but the work of a variety of groups and companies that they had inherited. Their claims are spurious at every level.

TiVo clearly owns the rights to a very specific piece of technology that Dish has been absolutely proven to have violated. The evidence suggests that they obtained and wantonly copied TiVo's technology.

Even the Microsoft comparison is off base. TiVo is a small company that has done a lot of innovative development. Without the protection of patents large companies would be free to do exactly what they've been attempting to do - copy the technology and run the innovator out of business. This is exactly what the patent system was intended to prevent.


----------



## BobCamp1

JimboG said:


> Restart88,
> 
> Please don't take this the wrong way, because it may sound harsh -- it would be unlawful for you to continue to use a device in a manner that violates Tivo's patent. Tivo's patent means that no one within the United States may use its device or method without Tivo's permission (i.e. a license). Tivo is not require to license this patent to Dish at all if it does not want to.


The courts have never put the burden of proof on the end customer. That's an unreasonable expectation. Besides, it's civil law. It isn't illegal until you personally are sued and found guilty.

So if Tivo want to sue each individual Dish customer, they can try, but those cases will get thrown out really fast.

FYI, you will have to throw out your cell phones, CDs, and uninstall your instant messaging clients, and remove the hard drives from your PCs. There are patents in place here and no cross-licensing agreements have been established for any of these technologies.


----------



## ChuckyBox

BobCamp1 said:


> FYI, you will have to throw out your cell phones, CDs, and uninstall your instant messaging clients, and remove the hard drives from your PCs.


Thank God you told us that. I can finally get a little peace and quiet.

I'm gonna go read a book.


----------



## Curtis

BobCamp1 said:


> The courts have never put the burden of proof on the end customer. That's an unreasonable expectation. Besides, it's civil law. It isn't illegal until you personally are sued and found guilty.


Not true. It would be contempt of court.

Speaking of that, Dish didn't send copies of the injunction to their users:

Defendants shall forthwith provide written notice of this judgment, and the injunction ordered herein, to: their officers, directors, agents, servants, representatives, attorneys, employees, subsidiaries and affiliates, and those persons in active concert or participation with them, including any and all manufacturers, distributors, retailers, and service providers who have been involved in the making, using, selling, offering for sale or importing of any Infringing Products; *and to all other persons* or entities involved in any way with the making, *using*, selling, offering for sale or importing of any Infringing Products. Defendants shall take whatever means are necessary or appropriate to ensure that this order is properly complied with."


----------



## HDTiVo

Curtis said:


> Speaking of that, Dish didn't send copies of the injunction to their users:


Has DISH sent any injunction related notice to the relevant subscribers yet? You have to assume the 30 days has run out for this to be an issue today.


----------



## ZeoTiVo

ChuckyBox said:


> Thank God you told us that. I can finally get a little peace and quiet.
> 
> I'm gonna go read a book.


on your Kindle?


----------



## ZeoTiVo

HDTiVo said:


> Has DISH sent any injunction related notice to the relevant subscribers yet? You have to assume the 30 days has run out for this to be an issue today.


maybe they thought making restart88's DVR go dark was notice to all as they knew he would spread the word. 

on a more serious note- they have not - and most likely becasue they feel they are now in full compliance with the injunction and no longer have any infringing products in the customer hands.


----------



## Curtis

ZeoTiVo said:


> maybe they thought making restart88's DVR go dark was notice to all as they knew he would spread the word.
> 
> on a more serious note- they have not - and most likely becasue they feel they are now in full compliance with the injunction and no longer have any infringing products in the customer hands.


They sent a copy with their first notice to dealers. That was the one that didn't list any problems.

If a subscriber wants out of a contract it looks like they could use the injunction as rationale. Compliance with a judge's order.


----------



## Curtis

Here is a hilarious podcast discussion of the injunction. Click at the linked web page to download the MP3. The injunction discussion starts at 13:57. The guy is clueless.


----------



## BlackBetty

Curtis said:


> Here is a hilarious podcast discussion of the injunction. Click at the linked web page to download the MP3. The injunction discussion starts at 13:57. The guy is clueless.


wow what a joke. The guy even went one step further and read the injunctive notice after he made his absurd statements. What he read clearly proved what he said to be grossly wrong. I guess you don't have to have even mediocre reading comprehension skills to have a podcast.


----------



## BobCamp1

Curtis said:


> Not true. It would be contempt of court.
> 
> Speaking of that, Dish didn't send copies of the injunction to their users:
> 
> Defendants shall forthwith provide written notice of this judgment, and the injunction ordered herein, to: their officers, directors, agents, servants, representatives, attorneys, employees, subsidiaries and affiliates, and those persons in active concert or participation with them, including any and all manufacturers, distributors, retailers, and service providers who have been involved in the making, using, selling, offering for sale or importing of any Infringing Products; *and to all other persons* or entities involved in any way with the making, *using*, selling, offering for sale or importing of any Infringing Products. Defendants shall take whatever means are necessary or appropriate to ensure that this order is properly complied with."


Most judges separate the end users. They get a notice but are not enjoined. Judge Fossom sort-of did this, depending on how you interpret a semi-colon and the phrase "active concert or participation". This phrase is defined in your quote, and the end user is mentioned in another clause, which implies they are NOT in "active concert or participation". Therefore they are not enjoined.

But even if you interpret the semi-colon your way, he did put the other standard out-clause in there. If you didn't receive a notice, you don't have to comply with the injunction. And if Dish for some odd mystical reason doesn't think you need a notice, you're not subject to the injunction. Dish, of course, can get into serious trouble for not doing this part. But the end users are in the clear for now, and I still think they are permanently in the clear.


----------



## Curtis

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

TIVO INC., &#167;
&#167;
Plaintiff, &#167;
&#167;
v. &#167; 2:04-CV-1-DF
&#167;
ECHOSTAR COMMUNICATIONS &#167;
CORP., et al. &#167;

&#167;

Defendants. &#167;

O R D E R

A mandate has been issued by the United States Court of Appeals for the Federal Circuit

in the above captioned case. Dkt. No. 821. The Court hereby SETS this matter for status

conference on May 30, 2008 at 10:00A.M. in TEXARKANA.

Plaintiff shall submit to the Court by letter, the topics of discussion for the status

conference and the relief sought by May 16, 2008. Defendant shall by letter, respond and advise

on any additional matters by May 23, 2008.

IT IS SO ORDERED.

Case 2:04-cv-00001-DF-CMC Document 822 Filed 04/23/2008 Page 1 of 1

(Thanks Mainer)


----------



## bidderman9

OK legal folks, can you translate this in to plain english? What does this mean?


----------



## nrc

bidderman9 said:


> OK legal folks, can you translate this in to plain english? What does this mean?


IANAL but it seems pretty straightforward. The judge has scheduled a status conference for May 30th. By July 16th he wants TiVo to have sent him a letter with "the topics of discussion for the status conference and the relief sought." Dish must write him to "respond and advise on any additional matters" by May 23.

TiVo will probably write that Dish is still infringing and ask that Dish be compelled to comply with the injunction or that contempt proceedings be started.

Dish will respond that they've installed their work-around and that damages should be totaled as of the date of that work-around and that should be the end of it. Then they'll probably ask to put any further action off until the Supreme Court acts.


----------



## Doh

BobCamp1 said:


> But even if you interpret the semi-colon your way, he did put the other standard out-clause in there. If you didn't receive a notice, you don't have to comply with the injunction. And if Dish for some odd mystical reason doesn't think you need a notice, you're not subject to the injunction. Dish, of course, can get into serious trouble for not doing this part. But the end users are in the clear for now, and I still think they are permanently in the clear.


I admit I have no idea whether end users would be considered to be in "active concert or participation" but the test for whether you are subject to the injunction isn't whether Dish gives you notice, but whether you have actual notice, and I think debating the meaning of the injunction is a pretty good indication you have actual notice of it.


----------



## Hew

nrc said:


> IANAL but it seems pretty straightforward. The judge has scheduled a status conference for May 30th. By July 16th he wants TiVo to have sent him a letter with "the topics of discussion for the status conference and the relief sought." Dish must write him to "respond and advise on any additional matters" by May 23.
> 
> TiVo will probably write that Dish is still infringing and ask that Dish be compelled to comply with the injunction or that contempt proceedings be started.
> 
> Dish will respond that they've installed their work-around and that damages should be totaled as of the date of that work-around and that should be the end of it. Then they'll probably ask to put any further action off until the Supreme Court acts.


Does this mean that DISH will have another month or so before they really have to shut off their dvr's? This is BS, if the deadline past then why do they have to wait unil May 30th to see that Dish is still infringing.

July 16th or May 16th?

When will tivo see any money from this case?


----------



## samo

Hew said:


> Does this mean that DISH will have another month or so before they really have to shut off their dvr's? This is BS, if the deadline past then why do they have to wait unil May 30th to see that Dish is still infringing.
> 
> July 16th or May 16th?
> 
> When will tivo see any money from this case?


What's the rush? It is almost obvious that judge wants a conference between TiVo and Dish to work out details of the settlement. He doesn't have a qualifications to determine if Dish is infringing with the new software or not and he doesn't want to get a reputation as an idiot if he is wrong. The most likely outcome of the conference will be some kind of settlement that would allow both parties to walk out with the saved face and proclaim the victory.
Rogers would get his 80% bonus, TiVo shareholders will get a dollar or two bump in in their holdings and Charlie will feel better that he did not surrender to the extortion without a fight until 11th hour.


----------



## old7

samo said:


> What's the rush?


The rush is every day that Dish Network/Echostar is allowed to continue to infringe is damaging to TiVo.



samo said:


> It is almost obvious that judge wants a conference between TiVo and Dish to work out details of the settlement.


No, the judge isn't going to work out the details of the settlement. He doesn't care if they reach a settlement. What he wants to know is what are the legal opinions from both parties on where the case stands now and work towards finalizing this case.



samo said:


> He doesn't have a qualifications to determine if Dish is infringing with the new software or not and he doesn't want to get a reputation as an idiot if he is wrong.


I do believe the judge is capable of determining if the DVRs are "colorably different."



samo said:


> The most likely outcome of the conference will be some kind of settlement that would allow both parties to walk out with the saved face and proclaim the victory.


Again the conference is not about a settlement. TiVo and Dish Network/Echostar are capable of reaching a settlement without the judge. It is entirely possible that TiVo and Dish Network/Echostar will never reach a settlement, much to the dismay of Dish Network/Echostar's customers.

The conference is about what happens next. How much Dish Network/Echostar owes TiVo and when Dish Network/Echostar has to disable the recording and playback functions in their infringing DVRs. Also if there are any DVRs that are not "colorably different" that are now considered to be infringing.



samo said:


> Rogers would get his 80% bonus, TiVo shareholders will get a dollar or two bump in in their holdings and Charlie will feel better that he did not surrender to the extortion without a fight until 11th hour.


I think it is disingenuous to call TiVo suing Dish Network/Echostar "extortion." Maybe you missed the part where TiVo won and the court found Dish Network/Echostar in violation of patent infringement.


----------



## VCD

Hew said:


> Does this mean that DISH will have another month or so before they really have to shut off their dvr's? This is BS, if the deadline past then why do they have to wait unil May 30th to see that Dish is still infringing.
> 
> July 16th or May 16th?
> 
> When will tivo see any money from this case?


The wheels of justice turn very slowly due to 1) Other cases 2) Scheduling conflicts among all parties involved (lawyers) 3) They have no idea how impatient we are for this to finally be over so they operate on their own schedule. They do not even know we exist.


----------



## VCD

samo said:


> It is almost obvious that judge wants a conference between TiVo and Dish to work out details of the settlement. He doesn't have a qualifications to determine if Dish is infringing with the new software or not and he doesn't want to get a reputation as an idiot if he is wrong. The most likely outcome of the conference will be some kind of settlement that would allow both parties to walk out with the saved face and proclaim the victory.


I do not believe at all that will be the outcome. If Dish wants to prove they do not infringe, that will be a matter for a separate lawsuit, not yet filed by Dish. They can't just figure that out in a few hours without long winded testimony from both sides that will take years to go through for the first trial and the appeal. Besides, it is most likely that issue would be resolved by a jury, not a judge. The way I see it, either Dish strikes a deal with Tivo or they will be forced to disable their DVR's. Only later can Dish decide to pursue another lawsuit or not to try to prove their new software does not infringe..


----------



## VCD

old7 said:


> The rush is every day that Dish Network/Echostar is allowed to continue to infringe is damaging to TiVo.
> 
> No, the judge isn't going to work out the details of the settlement. He doesn't care if they reach a settlement. What he wants to know is what are the legal opinions from both parties on where the case stands now and work towards finalizing this case.
> 
> Again the conference is not about a settlement. TiVo and Dish Network/Echostar are capable of reaching a settlement without the judge. It is entirely possible that TiVo and Dish Network/Echostar will never reach a settlement, much to the dismay of Dish Network/Echostar's customers.
> 
> The conference is about what happens next. How much Dish Network/Echostar owes TiVo and when Dish Network/Echostar has to disable the recording and playback functions in their infringing DVRs. Also if there are any DVRs that are not "colorably different" that are now considered to be infringing.
> 
> I think it is disingenuous to call TiVo suing Dish Network/Echostar "extortion." Maybe you missed the part where TiVo won and the court found Dish Network/Echostar in violation of patent infringement.


*Ditto to everything he said above.*


----------



## VCD

old7 said:


> I do believe the judge is capable of determining if the DVRs are "colorably different."


This is the one thing I do not agree with. Wouldn't there have to be a new trial where Dish can present their argument and Tivo can argue back. These kind of things always run into way more time than one would think. The lawyers would require months to assemble their strategy, their list of witnesses to testify, etc etc etc. Then the trial could drag on and then an appeal. Meanwhile, I think the DVR's would be shut down.


----------



## old7

VCD said:


> This is the one thing I do not agree with. Wouldn't there have to be a new trial where Dish can present their argument and Tivo can argue back. These kind of things always run into way more time than one would think. The lawyers would require months to assemble their strategy, their list of witnesses to testify, etc etc etc. Then the trial could drag on and then an appeal. Meanwhile, I think the DVR's would be shut down.


It is my belief that the judge will rule that the software changes that Dish made to the DVR models that have already found infringing are insufficient and that the record and playback functions will need to be disabled.

I would like to see the judge rule that all of the new DVR models that have come out since the inception of this trial also infringe because they are not "colorably different," but you are probably correct that the new models will require at the very least discovery and a few hearings to determine whether they pass the "colorably different" benchmark. Discovery and a couple hearings could take several months. If a new trial is required it could be much longer.


----------



## VCD

old7 said:


> It is my belief that the judge will rule that the software changes that Dish made to the DVR models that have already found infringing are insufficient and that the record and playback functions will need to be disabled.
> 
> I would like to see the judge rule that all of the new DVR models that have come out since the inception of this trial also infringe because they are not "colorably different," but you are probably correct that the new models will require at the very least discovery and a few hearings to determine whether they pass the "colorably different" benchmark. Discovery and a couple hearings could take several months. If a new trial is required it could be much longer.


Ok, thank you for your carefully worded response. It seems pretty clear. If I could ask you to elaborate on one point however, in your opinion, do legal precedings like these make it so that they list of DVR's will definitely get disabled or will the judge wait to disable until a later time, waiting for discovery process? I know this is a difficult question to answer, I am just looking for legal protocol I guess.


----------



## old7

VCD said:


> Ok, thank you for your carefully worded response. It seems pretty clear. If I could ask you to elaborate on one point however, in your opinion, do legal precedings like these make it so that they list of DVR's will definitely get disabled or will the judge wait to disable until a later time, waiting for discovery process? I know this is a difficult question to answer, I am just looking for legal protocol I guess.


It would be hard to say definitively what will happen, there are too many possibilities. Some of it will be at the judges discretion.

Just to clarify, the judge may order Dish to disable the DVR functions in the infringing DVR models, but it is up to Dish to actually disable them. The judge may find them in contempt of the court if Dish doesn't follow the judge's orders and might impose heavy fines and other sanctions.


----------



## BlackBetty

old7 said:


> but you are probably correct that the new models will require at the very least discovery and a few hearings to determine whether they pass the "colorably different" benchmark. Discovery and a couple hearings could take several months. If a new trial is required it could be much longer.


this will be moot if the judge does not budge on the original injunction. If the judge says "shut em down and now!" this will force E to settle on TiVo's terms. And I can promise you the terms will include ALL of E's DVR's. If the injunction is solid, E will be backed into a corner with no where to go at all. SC won't matter either if the injunction isn't stayed.


----------



## old7

BlackBetty said:


> this will be moot if the judge does not budge on the original injunction. If the judge says "shut em down and now!" this will force E to settle on TiVo's terms. And I can promise you the terms will include ALL of E's DVR's. If the injunction is solid, E will be backed into a corner with no where to go at all. SC won't matter either if the injunction isn't stayed.


I agree and that would be within the judge's discretion. Dish is already backed into a corner and from here it only gets tighter and much more expensive to get out.

What I don't understand is the people that think that the judge is going to give Dish another chance at a trial just because they said "we changed the software and no longer infringe." That is not how courts work. If it was they could game the system for decades. It didn't work for Research In Motion (Blackberry) when NTP put them in a very similar corner.


----------



## dswallow

old7 said:


> What I don't understand is the people that think that the judge is going to give Dish another chance at a trial just because they said "we changed the software and no longer infringe." That is not how courts work. If it was they could game the system for decades. It didn't work for Research In Motion (Blackberry) when NTP put them in a very similar corner.


With RIM it never got that far. The pressure from POSSIBLY getting told to shut down completely was enough to get them to work out a deal. The writing was on the wall, for sure, though.

Dish, on the other hand, has a track record of belligerence in court, and for so many reasons deserves a giant smack-down.


----------



## kmill14

RIMM was also still working to install their "workaround", while Dish is saying that it is completely deployed. Of course it could all be BS in terms of avoiding infringement, but it IS different than the RIMM case, the Vonage v. Verizon case, etc.


----------



## ZeoTiVo

TRUTH IN POSTING

VCD is the latest incarnation of the multi-userid yahoo stock troll that had just been using the Princeton Tech ID.

There is nothing he posted so far in here I take exception to though, so just FYI.


----------



## ZeoTiVo

dswallow said:


> With RIM it never got that far. The pressure from POSSIBLY getting told to shut down completely was enough to get them to work out a deal. The writing was on the wall, for sure, though.
> 
> Dish, on the other hand, has a track record of belligerence in court, and for so many reasons deserves a giant smack-down.


yep. DISH is basically saying they are in full compliance with the injunction without coming right out with a Press Release saying so. I assume TiVo could file a motion with the court but that the Judge would not need that if he, himself, felt DISH not in compliance.
I would assume any meeting would be to give TiVo a chance to state their persective with DISH present to hear all and be asked if they have anything to add or say.

is the meeting a legal proceeding or just a meeting for the Judge's own due dilligence in solving this without hurting end users?


----------



## Curtis

ZeoTiVo said:


> is the meeting a legal proceeding or just a meeting for the Judge's own due dilligence in solving this without hurting end users?


These meetings occur in legal proceedings all the time. It's nothing unusual. The judge doesn't have any idea (officially) what is going on until someone tells him. Besides, the hardware claims were remanded. That has to be settled regardless. As far as "hurting the end users" is concerned, the judge has said that the most important thing is maintaining the integrity of the patent system.

"the public interest would not be disserved by a permanent injunction. The public has an interest in maintaining a strong patent system. This interest is served by enforcing an adequate remedy for patent infringement --- in this case, a permanent injunction. "


----------



## ZeoTiVo

samo said:


> Charlie will feel better that he did not surrender to the extortion without a fight until 11th hour.


come on Samo - that is below your usual higher standards.

Or did you mena that Charlie thinks it is extortion - versus you thinking it was extortion?


----------



## ZeoTiVo

Curtis said:


> As far as "hurting the end users" is concerned, the judge has said that the most important thing is maintaining the integrity of the patent system.
> 
> "the public interest would not be disserved by a permanent injunction. The public has an interest in maintaining a strong patent system. This interest is served by enforcing an adequate remedy for patent infringement --- in this case, a permanent injunction. "


Thanks Curtis. I certainly agree with what you state as well. Dish has fought for ample time to deal with this correctly and yet still refuses to do what it should. Hammer time would be fine by me and serve the greater interest of a strong patent system.

Also thanks for posting what the judge has said, mainly I wnated to better understand what was in his mind as that is the one that counts the most


----------



## BobCamp1

dswallow said:


> With RIM it never got that far. The pressure from POSSIBLY getting told to shut down completely was enough to get them to work out a deal. The writing was on the wall, for sure, though.
> 
> Dish, on the other hand, has a track record of belligerence in court, and for so many reasons deserves a giant smack-down.


Well, the judge in the RIMM case gave a stern warning regarding the workaround. I don't think he was going to buy it.

The problem is, if DISH is still infringing with the new software, they can turn around another software update in 48 hours and say, "how about now?" Then the cycle repeats with no end in sight. Plus almost every single decision Judge Fossom makes from now on can be appealed, and the Appellate Court may grant a stay once again while they review it. This would drag it out even further. Judges like cases to come to a close.

The majority (but not most) judges will give the infringer one attempt to fix the problem. The other ones won't -- they'll simply state that the fines plus the injunction is the penalty for the original infringement, and it doesn't matter if the software has been updated since then -- all DVR functionality is supposed to be disabled by now anyway. These same judges would also find that DISH can't interpret the injunction the way it did, and would start handing out additional fines.


----------



## samo

ZeoTiVo said:


> come on Samo - that is below your usual higher standards.
> 
> Or did you mena that Charlie thinks it is extortion - versus you thinking it was extortion?


There is no question in my mind that Charlie thinks it is an extortion. In my opinion it is an extortion, but done well.
TiVo deliberately went to the court that rules 80% in favor of patent holders. They twisted facts knowing very well that DishDVR was developed independently but uses same technique as TiVo. They succeeded in a false claims that they suffered loses due to Dish, knowing very well that original DishPlayer by Microsoft was more successful than TiVo (it sold 3 times number of units at the time it was discontinued in favor of DishPVR). But TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well. Charlie should learn the lesson not to be cheap when it comes to lawyers.


----------



## dswallow

samo said:


> There is no question in my mind that Charlie thinks it is an extortion. In my opinion it is an extortion, but done well.
> TiVo deliberately went to the court that rules 80% in favor of patent holders. They twisted facts knowing very well that DishDVR was developed independently but uses same technique as TiVo. They succeeded in a false claims that they suffered loses due to Dish, knowing very well that original DishPlayer by Microsoft was more successful than TiVo (it sold 3 times number of units at the time it was discontinued in favor of DishPVR). But TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well. Charlie should learn the lesson not to be cheap when it comes to lawyers.


Hallucinate much?


----------



## old7

samo said:


> There is no question in my mind that Charlie thinks it is an extortion. In my opinion it is an extortion, but done well.
> TiVo deliberately went to the court that rules 80% in favor of patent holders. They twisted facts knowing very well that DishDVR was developed independently but uses same technique as TiVo. They succeeded in a false claims that they suffered loses due to Dish, knowing very well that original DishPlayer by Microsoft was more successful than TiVo (it sold 3 times number of units at the time it was discontinued in favor of DishPVR). But TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well. Charlie should learn the lesson not to be cheap when it comes to lawyers.


You seemed to have missed your excuses for the Federal Appellate Court?


----------



## acvthree

>>>convinced 12 technically illiterate people

You base this statement on what? That they are from Texas? Or just Southern? Or maybe you assume that rural people are just plain dumb?

Al


----------



## Curtis

samo said:


> DishDVR was developed independently but uses same technique as TiVo.


Using the same method is infringement. Whether they developed it independently doesn't matter. You don't seem to know much about patents.


----------



## Phantom Gremlin

samo said:


> Charlie should learn the lesson not to be cheap when it comes to lawyers.


Maybe "good" lawyers won't take Charlie's cases. So were these laywers of Charlie's who were sanctioned just buffoons, or were they doing Charlie's bidding? Did he pay them enough to cover the $63,000 they had to *personally* pay for Echostar's abuse of the judicial process? It's fascinating reading.

And, seeing as you're from Colorado, perhaps you could disclose your relationship, if any, past or present, with Charlie and/or Dish and/or Echostar (or whatever the two companies are now calling themselves).


----------



## samo

acvthree said:


> >>>convinced 12 technically illiterate people
> 
> You base this statement on what? That they are from Texas? Or just Southern? Or maybe you assume that rural people are just plain dumb?
> 
> Al


Technically illiterate does not equate with dumb. But if TiVo wanted fair play, they would go to local court in Silicone valley to have jury composed mostly of technical people.


----------



## samo

Curtis said:


> Using the same method is infringement. Whether they developed it independently doesn't matter. You don't seem to know much about patents.


I don't (I only have six of my own), but I know enough to agree with you that your statement is 100% right. Whoever is first to patent obvious technology has the right to extort money from people who were second. It is the law.


----------



## samo

Phantom Gremlin said:


> seeing as you're from Colorado, perhaps you could disclose your relationship, if any, past or present, with Charlie and/or Dish and/or Echostar (or whatever the two companies are now calling themselves).


You haven't been on this board long enough to know that this or similar question pops up just about every time when somebody tries to connect the the dots between Littleton, CO and Englewood (Dish headquarter).
I have answered this question at least a dozen times, but I will gladly disclose my relation with E* and Charlie.
I was one of the first people to get TiVo and I'm the 20th member to join this forum. I'm also one the first people to get DishPVR and I liked it so much that one of the users told me that "I spit on a floor in a temple of TiVo". That is when I realise that TiVo is more of the religion than technical innovation.
I own 5 Dish DVRs and because Dish dropped the programming I need, I also own 4 DirecTV DVRs (2 of them are TiVo). In addition I keep my first 14 hr series 1 in my closet for sentimental value.
DishDVrs and a bill I pay are the extent of my relations with E*.
Although I do admire Charlie as true self made billionaire and he does live less than 2 miles away from me, I never met him in person nor do I have any desire to do so.
I never had any holdings in DISH nor do have any intention of becoming Dish shareholder in a future and I'm the last person to worry about the DishDVr shutdown. First, it will never happen, second if it does - the programming that I really care about on Dish is in SD and I can easily replace the capacity of my DishDVrs with something else that will do the trick.
My statement about TiVo extorting money from Dish is based on my personal beliefs on how business should run my opinion about legal system, and my knowledge of the technology, and has nothing to do with any material loss or gain.
So here you have it. Full disclosure. Now I can run for the the senator seat (can't run for the president - was not born here).


----------



## ZeoTiVo

samo said:


> But TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well. Charlie should learn the lesson not to be cheap when it comes to lawyers.


my opinion of your opinions just dropped drastically.


----------



## DCIFRTHS

samo said:


> Technically illiterate does not equate with dumb. But if TiVo wanted fair play, they would go to local court in Silicone valley to have jury composed mostly of technical people.


TiVo played by the rules. Expecting them to do anything else is naive.


----------



## DCIFRTHS

samo said:


> ... Although I do admire Charlie as true self made billionaire ...


You admire him, and you have the nerve to publicly complain about a company not playing fair? What am I missing here?



samo said:


> My statement about TiVo extorting money from Dish is based on my personal beliefs on how business should run my opinion about legal system, and my knowledge of the technology, and has nothing to do with any material loss or gain.
> So here you have it. Full disclosure. Now I can run for the the senator seat (can't run for the president - was not born here).


You sound like you would like to live in a country, under a government, that doesn't require a person to spend their entire life's savings, including selling their home, because their medical insurance isn't adequate. Let's not start talking about what is "fair"... my list is very long, and the patent laws are very close to the end of it.


----------



## DCIFRTHS

samo said:


> I don't (I only have six of my own), but I know enough to agree with you that your statement is 100% right. Whoever is first to patent obvious technology has the right to extort money from people who were second. It is the law.


I hope none of them are related to launching satellites.

Assuming that you actually own your patents, as opposed to your employer, would you defend them if someone infringed on them?


----------



## samo

DCIFRTHS said:


> I hope none of them are related to launching satellites.
> 
> Assuming that you actually own your patents, as opposed to your employer, would you defend them if someone infringed on them?


Funny! All of them are related to launching satellites. And all of them belong to aerospace companies I worked for at the time. And there is no question that they would defend them if they could squeeze some money out of competition. I never got the dime for them except my salary, but I was young and it made me feel important at the time. Today I would never spend a time and effort to do such a useless thing. Life is too short to waste time making money for somebody else. Unfortunately, I learned it 20 years later.


----------



## dswallow

samo said:


> I don't (I only have six of my own), but I know enough to agree with you that your statement is 100% right. Whoever is first to patent obvious technology has the right to extort money from people who were second. It is the law.


A lot of times "obvious technology" only becomes obvious when someone happens upon the combination of ideas that leads to their patent. Suddenly, then, it seems everyone comes out of the woodwork saying how "obvious" it is.

And the concept of a DVR, especially just extending upon the concept of a VCR is pretty obvious... at least once you stop ignoring the idea because the necessary hardware is many times the cost of the best VCR's (i.e., who cares how obvious it is if it isn't practical).

But the specific method TiVo developed to utilize very inexpensive hardware wasn't so obvious and solved a particularly important aspect of making that idea commercially viable. And that's specifically what the patent involves.


----------



## samo

DCIFRTHS said:


> You admire him, and you have the nerve to publicly complain about a company not playing fair? What am I missing here?
> 
> You sound like you would like to live in a country, under a government, that doesn't require a person to spend their entire life's savings, including selling their home, because their medical insurance isn't adequate. .


No. I was born in a country that had free medical care. It doesn't exist anymore (as USSR). What I would like is for this country to join the rest of civilized world in recognition that access to medical care is just as important as freedom.


----------



## dswallow

samo said:


> No. I was born in a country that had free medical care. It doesn't exist anymore (as USSR). What I would like is for this country to join the rest of civilized world in recognition that access to medical care is just as important as freedom.


Unfortunately, access to *good* and *timely* medical care is what most everyone in any other country comes to the U.S. to receive (yes, and pay for).

Free medical care is no panacea.


----------



## PPC1

samo said:


> I don't (I only have six of my own), but I know enough to agree with you that your statement is 100% right. Whoever is first to patent obvious technology has the right to extort money from people who were second. It is the law.


No, you cannot get a valid patent for obvious technology. You might be able to get your patent from the Patent & Trademark office if they slip up, but an alleged infringer can argue in court that your patent is not valid because the technology was obvious.


----------



## GoHokies!

PPC1 said:


> No, you cannot get a valid patent for obvious technology. You might be able to get your patent from the Patent & Trademark office if they slip up, but an alleged infringer can argue in court that your patent is not valid because the technology was obvious.


Yep - this patent has passed the "not obvious" test many times over - that horse is dead, buried, dug up and beaten some more.

<joke>In Soviet Russia, obvious technology patents you!</joke>


----------



## BobCamp1

samo said:


> There is no question in my mind that Charlie thinks it is an extortion....
> TiVo deliberately went to the court that rules 80% in favor of patent holders. They twisted facts knowing very well that DishDVR was developed independently but uses same technique as TiVo.
> 
> ...[T]hey convinced 12 technically illiterate people ... that poor little TiVo showed Dish the prototype and Dish copied it.


I agree with all of these statements. I edited out the ones I disagreed with.

The jury did find Dish willfully violated the patent. But the judge did not, as he overruled their verdict. And the appeals court sent back the hardware claims. The jury found Dish guilty of direct and indirect infringement (doctrine of equivalents) simultaneously, which is impossible. It shows just how easy it is to convince juries down there of anything. No one knows why, but it is true. I have said this before, many patent troll companies (and some "actual" companies) actually use this district as an extortion tactic. Tivo certainly did. (FYI, this is probably constantly running though Judge Fossom's mind, and the Appeals Court's as well).

It's pretty obvious Dish tried to work around the patent, which is fine, but the attempt was only half-hearted and as a result they were found to be violating it. This was actually a close call -- which is why the appeals court did not overturn the software infringement.

Finally, you will rarely get a technical person on a jury, no matter what kind of trial it is. He is too logical and one of the sides needs the jury to make a leap of faith. One of the sides will dismiss him. (If you do get someone technical, though, they'll be the foreperson.)


----------



## acvthree

dswallow said:


> Unfortunately, access to *good* and *timely* medical care is what most everyone in any other country comes to the U.S. to receive (yes, and pay for).
> 
> Free medical care is no panacea.


From what I've read, many more US citizens travel to Canada for medical reasons than others travel to the US for the same.

I was in the German medical system due to an accident while on a business trip. I found it to be fast and excelent medical care. The concept that the US medical system is faster or better just doesn't show up in the statistics or my experience.

Al


----------



## BobCamp1

PPC1 said:


> No, you cannot get a valid patent for obvious technology. You might be able to get your patent from the Patent & Trademark office if they slip up, but an alleged infringer can argue in court that your patent is not valid because the technology was obvious.


Well -- you can get the patent office to invalidate the claim, but the jury must assume the claim is valid during trial. Which is sad, because the patent office takes so long review it that the trial usually finishes first or a settlement has been reached. Then when it does get invalidated later, you find out you're paying that company for nothing (hint: put this escape clause in your settlement if you can). That didn't happen in this case -- this patent is clearly not obvious.

Also, I myself have a couple of patents I considered to be very obvious, yet they've gone through patent offices worldwide without any problems. In my experience, those guys in the patent office will approve ANYTHING.


----------



## Curtis

BobCamp1 said:


> The jury found Dish guilty of direct and indirect infringement (doctrine of equivalents) simultaneously, which is impossible.


No it isn't. The jury found that Dish infringed the software claims under the doctrine of equivalents. The jury also found that Dish literally infringed the hardware claims. Nowhere near impossible. The reason the hardware verdict eas reversed and remanded was that the appeals court ruled that Dish did not literally infringe the hardware claims. Unfortunately, the judge instructed the jury that if they found literal infringement they could not also find infringement under the doctrine of equivalents. The hardware claims issue is now back in district court to judge whether Dish infringed them under the doctrine of equivalents.

Appeals court:

"the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims."


----------



## RoyK

From NY Times Aug 2007
http://www.nytimes.com/2007/08/12/opinion/12sun1.html

Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report, issued in May, ranked the United States last or next-to-last compared with five other nations - Australia, Canada, Germany, New Zealand and the United Kingdom - on most measures of performance, including quality of care and access to it. Other comparative studies also put the United States in a relatively bad light.

Insurance coverage. All other major industrialized nations provide universal health coverage, and most of them have comprehensive benefit packages with no cost-sharing by the patients. The United States, to its shame, has some 45 million people without health insurance and many more millions who have poor coverage. Although the president has blithely said that these people can always get treatment in an emergency room, many studies have shown that people without insurance postpone treatment until a minor illness becomes worse, harming their own health and imposing greater costs.

Access. Citizens abroad often face long waits before they can get to see a specialist or undergo elective surgery. Americans typically get prompter attention, although Germany does better. The real barriers here are the costs facing low-income people without insurance or with skimpy coverage. But even Americans with above-average incomes find it more difficult than their counterparts abroad to get care on nights or weekends without going to an emergency room, and many report having to wait six days or more for an appointment with their own doctors.

Fairness. The United States ranks dead last on almost all measures of equity because we have the greatest disparity in the quality of care given to richer and poorer citizens. Americans with below-average incomes are much less likely than their counterparts in other industrialized nations to see a doctor when sick, to fill prescriptions or to get needed tests and follow-up care.


----------



## dswallow

RoyK said:


> From NY Times Aug 2007
> http://www.nytimes.com/2007/08/12/opinion/12sun1.html
> 
> Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report, issued in May, ranked the United States last or next-to-last compared with five other nations  Australia, Canada, Germany, New Zealand and the United Kingdom  on most measures of performance, including quality of care and access to it. Other comparative studies also put the United States in a relatively bad light.
> 
> Insurance coverage. All other major industrialized nations provide universal health coverage, and most of them have comprehensive benefit packages with no cost-sharing by the patients. The United States, to its shame, has some 45 million people without health insurance and many more millions who have poor coverage. Although the president has blithely said that these people can always get treatment in an emergency room, many studies have shown that people without insurance postpone treatment until a minor illness becomes worse, harming their own health and imposing greater costs.
> 
> Access. Citizens abroad often face long waits before they can get to see a specialist or undergo elective surgery. Americans typically get prompter attention, although Germany does better. The real barriers here are the costs facing low-income people without insurance or with skimpy coverage. But even Americans with above-average incomes find it more difficult than their counterparts abroad to get care on nights or weekends without going to an emergency room, and many report having to wait six days or more for an appointment with their own doctors.
> 
> Fairness. The United States ranks dead last on almost all measures of equity because we have the greatest disparity in the quality of care given to richer and poorer citizens. Americans with below-average incomes are much less likely than their counterparts in other industrialized nations to see a doctor when sick, to fill prescriptions or to get needed tests and follow-up care.


It's the disparity in the US, mostly based on ability to pay, that affects the ranking more than almost any other thing. But ignoring that aspect, in the US we pretty much control what doctor we go to and as such control the level or quality of care, too. All doctors are not created equal. I'd rather be able to pick who I see than to be stuck seeing someone with lesser qualifications than I would otherwise choose.


----------



## timckelley

Also, whereas the average American may not be getting great medical care, the top medical centers in the U.S. are among the best in the world.


----------



## acvthree

Why do you assume that a universal health care system would automatically preclude seeing whom you wanted to see?

I don't understand the idea that we aren't smart enough to look at the systems around the world and determine which parts work well and can be replicated here.

In England, for example, there is universal health care that provides a minimum level of care. Higher level jobs often have a suplimental insurance that allows access to private health care as well. Seems like a good compromise. I'm sure there are others.

Again, the German system that I saw had a MUCH shorter office wait than I typically have in the US.

We struggle with this myth that we have the greatest healthcare system in the world and until we can look at our system and compare it to others logically and unemotionally nothing will improve.

Al


----------



## dswallow

acvthree said:


> Why do you assume that a universal health care system would automatically preclude seeing whom you wanted to see?


Because any such Universal health care system means that the people who can afford to pay will pay for those who cannot. And those who cannot become those who cannot and those who could be but decide to sit on their butts and not work since they don't really have to in order to get access to health care.

Ultimately pricing that doctors can receive will be completely controlled by government. And it'll lead to a significant drop in the number of people choosing medical careers when it becomes apparent managing a Circuit City could earn them a better income. Ultimately you'll end up with doctors serving "the system" and an ever-diminishing pool of doctors serving people outside of "the system."

Giving people something for nothing always leads to that. Heck, look at France.

We need less government, not more. We don't give people free cough drops. Why should we give people free penicillin?

And when you really examine it, as much noise gets made about "the uninsured" ultimately they do get care -- hospitals provide it, clinics provide it, and even now, governments (meaning we) are paying for it.

Sure, there are some fixes it needs, but socializing it is not one of them.


----------



## dswallow

Oh, and someone remind me how in the world we got onto health care in a TiVo/Echostar lawsuit thread?!


----------



## DaveDFW

samo said:


> Technically illiterate does not equate with dumb. But if TiVo wanted fair play, they would go to local court in Silicone valley to have jury composed mostly of technical people.


Our laws allow a patent lawsuit to be filed anywhere the patent infringement has occurred. There is nothing wrong with choosing a venue with a history of being friendly to patent holders. This is how our system operates.

You can't choose which laws to follow and which to ignore--if the laws are unfair, then the laws should be changed.

Don't penalize Tivo for taking advantage of the protections our system offers.

TTYL
David


----------



## acvthree

>>>And when you really examine it, as much noise gets made about "the uninsured" ultimately they do get care -- hospitals provide it, clinics provide it, and even now, governments (meaning we) are paying for it.

One more and I won't comment again. I like this thread and I don't want it locked.

You are correct. We pay for that health care anyway in the most expensive and least effective manner.

With more than 1/3 of all jobs (and rapidly moving to 1/2) not having healthcare benifits, there are a lot of people that are not sitting on their butts that are not getting healthcare.

I'm seeing more and more of my friends, with high levels of education and what used to be considered good jobs being underinsured to the point of uselessness.

Insurance spends huge portions of our healthcare dollars in an effort to prevent healthcare from being provided.

All of this adds up to a very broken system where we are paying a very high premium for very poor service.

We need to look at this as an engineer looks at a problem, not with dogma clouding our vision.

I'm done. Thanks for listening. 

Al


----------



## bidderman9

Isn't healthcare a little off topic for a TIVO forum?

<grabs wheel to jeck the car back on the road>


----------



## ZeoTiVo

bidderman9 said:


> Isn't healthcare a little off topic for a TIVO forum?
> 
> <grabs wheel to jeck the car back on the road>


something about Truth, Justice and the American Patent System I think.


----------



## Curtis

samo said:


> Technically illiterate does not equate with dumb. But if TiVo wanted fair play, they would go to local court in Silicone valley to have jury composed mostly of technical people.


"Silicone" Valley sounds like cleavage in Beverly Hills.


----------



## PPC1

BobCamp1 said:


> Well -- you can get the patent office to invalidate the claim, but the jury must assume the claim is valid during trial. Which is sad, because the patent office takes so long review it that the trial usually finishes first or a settlement has been reached. Then when it does get invalidated later, you find out you're paying that company for nothing (hint: put this escape clause in your settlement if you can). That didn't happen in this case -- this patent is clearly not obvious.
> 
> Also, I myself have a couple of patents I considered to be very obvious, yet they've gone through patent offices worldwide without any problems. In my experience, those guys in the patent office will approve ANYTHING.


No. You do not get the U.S. Patent & Trademark office to invalidate the patent claim of another party. What happens is when the infringer sues, the first defense asserted in the federal district court by the defendant almost invariably is that the patent was improperly issued because the technology was obvious. The parties then litigate the issue of obviousness in court. This is decided by the court as a matter of law-- meaning the trial judge decides the validity of the patent. After the court resolves the validity of the patent, the jury may adress at some later time whether the defendant infringed the patent, and if so damages. An illustration of this is set forth in _KSR Intern. Co. v. Teleflex Inc._, 127 S.Ct. 1727 ( 2007). See also, _Dennison Mfg. Co. v. Panduit Corp._, 106 S.Ct. 1578 (1986).

You are correct that you can get the U.S. Patent office to issue patents, even if the subject matter is obvious. What usually (but not invariably)happens is the patent office initially denies the patent application, the applicant then appeals the denial, and after some ritual handwringing the office then issues the patent. (I can't speak to procedures outside the U.S.) But just because the office issued the patent does not mean that the patent will survive a challenge in court.

I suspect your patents were intially denied, but later granted after seeking further review. If your patents were issued to your employer for your work, your employer's attorneys probably handled all of this without your input or knowledge.


----------



## Curtis

PPC1 said:


> No. You do not get the U.S. Patent & Trademark office to invalidate the patent claim of another party.


"Acting on a request filed last year by EchoStar, the USPTO ordered a re-examination of TiVo's patent on Dec. 15, 2005, according to the patent office's Web site."

http://www.law.com/jsp/article.jsp?id=1146051863938


----------



## old7

The www.eff.org has a Patent Busting Project that attacks what they view as bogus software patents. They do it without waiting to be sue by the patent owner.



> ...EFF will begin filing challenges to each in the form of a re-examination request to the U.S. Patent and Trademark Office. These requests create a forum to affirmatively invalidate patents rather than forcing technology users to await the threat of suit. Under this procedure, EFF can choose particularly egregious patents, submit the prior art it has collected, and argue that the patent should be revoked. EFF will collaborate with members of the software and Internet communities as well as legal clinics and pro bono cooperating attorneys to help in these efforts.


----------



## madbeachcat

DaveDFW said:


> Our laws allow a patent lawsuit to be filed anywhere the patent infringement has occurred. There is nothing wrong with choosing a venue with a history of being friendly to patent holders. This is how our system operates.
> 
> You can't choose which laws to follow and which to ignore--if the laws are unfair, then the laws should be changed.
> 
> Don't penalize Tivo for taking advantage of the protections our system offers.
> 
> TTYL
> David


There should not be a venue with a record of being friendly towards patent holders, or, for that matter, a record of being friendly toward those accused of violating patents.

Justice is supposed to be blind and these matters should be decided as a matter of law. And not influenced by the feelings of the judge.


----------



## Curtis

madbeachcat said:


> There should not be a venue with a record of being friendly towards patent holders, or, for that matter, a record of being friendly toward those accused of violating patents.
> 
> Justice is supposed to be blind and these matters should be decided as a matter of law. And not influenced by the feelings of the judge.


Defendants in patent suits love to delay and obfuscate. They don't get away with much in the Texas distrct court. They have specialized in handling patent cases and have seen all the tricks. That isn't partiality.


----------



## madbeachcat

Curtis said:


> Defendants in patent suits love to delay and obfuscate. They don't get away with much in the Texas distrct court. They have specialized in handling patent cases and have seen all the tricks. That isn't partiality.


Actually the post that I quote talked about choosing a court with a history of being friendly toward patent holders. If this is true, then it is being partial towards patent holders. But, having said that, I am not accusing the Texas courts of this, merely responding to what was posted.


----------



## DaveDFW

madbeachcat said:


> Actually the post that I quote talked about choosing a court with a history of being friendly toward patent holders. If this is true, then it is being partial towards patent holders. But, having said that, I am not accusing the Texas courts of this, merely responding to what was posted.


Just google "Marshall Texas patent" without the quotes. That court hears a disproportionately large number of patent cases.

The reason is probably anyone's guess--mine is that they are patent-holder friendly.

Why would a plaintiff waste their time filing with another court, when their chances are better in the Marshall court?

TTYL
David


----------



## VCD

samo said:


> TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well.


Hello Charlie. You know you copied it. Why try to convince us otherwise?


----------



## Greg Bimson

samo said:


> TiVo done well - they convinced 12 technically illiterate people and the judge that poor little TiVo showed Dish the prototype and Dish copied it. More power to TiVo, they got better attorneys and should get paid for executing extortion well.


And yet in the late 1800's, we have two guys show up with almost exactly the same patent. Then a couple of years later, one litigates the crap out of it in order to be the lone maker of the technology.

Welcome to the Elisha Gray against Alexander Graham Bell debate.

And anyone that believes these "problems" with patents are relatively new, I have this bridge...


----------



## ChuckyBox

samo said:


> There is no question in my mind that Charlie thinks it is an extortion.


So what's his BS lawsuit against NDS? I mean, the guy makes inferior security cards, then tries to blame his competitor when people crack them. Apparently the courts are useful when he thinks he's been robbed, but when he's the thief, it is extortion? Kinda hypocritical, don't you think?


----------



## kb7oeb

Not people, they are accusing NDS of cracking them.


----------



## VCD

dswallow said:


> Oh, and someone remind me how in the world we got onto health care in a TiVo/Echostar lawsuit thread?!


I was just wondering the same thing. Wow.


----------



## BlackBetty

is it May 30th yet


----------



## VCD

madbeachcat said:


> There should not be a venue with a record of being friendly towards patent holders, or, for that matter, a record of being friendly toward those accused of violating patents.
> 
> Justice is supposed to be blind and these matters should be decided as a matter of law. And not influenced by the feelings of the judge.


Maybe texans eat better food and that makes their minds function more clearly so they see that patent infringement is a serious issue. I say that only half in jest. When I was younger, I used to drive a coffee route truck with lots of food. I would go to many construction sites and factories. My route was in a town about 35 miles from where Iived. I used to joke about there being something really bad in the water because so many of the people in that town were incredibly dumb.


----------



## Langree

VCD said:


> Maybe texans eat better food and that makes their minds function more clearly


Best thing you (in any incarnation) ever posted.


----------



## riddick21

dswallow said:


> Because any such Universal health care system means that the people who can afford to pay will pay for those who cannot. And those who cannot become those who cannot and those who could be but decide to sit on their butts and not work since they don't really have to in order to get access to health care.
> 
> Ultimately pricing that doctors can receive will be completely controlled by government. And it'll lead to a significant drop in the number of people choosing medical careers when it becomes apparent managing a Circuit City could earn them a better income. Ultimately you'll end up with doctors serving "the system" and an ever-diminishing pool of doctors serving people outside of "the system."
> 
> Giving people something for nothing always leads to that. Heck, look at France.
> 
> We need less government, not more. We don't give people free cough drops. Why should we give people free penicillin?
> 
> And when you really examine it, as much noise gets made about "the uninsured" ultimately they do get care -- hospitals provide it, clinics provide it, and even now, governments (meaning we) are paying for it.
> 
> Sure, there are some fixes it needs, but socializing it is not one of them.


In an ideal world I could go to the doctor and pay him myself for his services. But because insurance companies exist wages for doctors (and every aspect of health care) gets inflated to the point where you cant possible afford to see one with out insurance. Either we get universal insurance or the whole insurance idea goes away and doctors take pay cuts. Private insurance makes no sense because peoples lives are less valuable than profits to these companies. Before you say that the quality of doctors will go down with out high wages please realize that not every doctor is in it for the money and plenty of other industries work just fine without middle men paying our bills. Competition is key to a successful free market and insurance companies hinder competition between doctors.


----------



## dswallow

riddick21 said:


> In an ideal world I could go to the doctor and pay him myself for his services. But because insurance companies exist wages for doctors (and every aspect of health care) gets inflated to the point where you cant possible afford to see one with out insurance. Either we get universal insurance or the whole insurance idea goes away and doctors take pay cuts. Private insurance makes no sense because peoples lives are less valuable than profits to these companies. Before you say that the quality of doctors will go down with out high wages please realize that not every doctor is in it for the money and plenty of other industries work just fine without middle men paying our bills. Competition is key to a successful free market and insurance companies hinder competition between doctors.


There's a bunch of scattered threads I've started here regarding exactly that. Sometimes the billed costs for medical services are just completely absurd, especially compared to the negotiated rates the insurance companies have. Any services billed by hospitals are often paid by insurance companies at a rate closer to 12-15% of that amount. If I could get billed at those rates, there's no way I'd need to be paying for the medical insurance I currently have... I'd easily settle for something that covered major expenses only, if that.


----------



## BlackBetty

can't you guys start a new thread on healthcare and leave this one for the original subject?


----------



## ufo4sale

BlackBetty said:


> can't you guys start a new thread on healthcare and leave this one for the original subject?


Actually this is much more interesting then the TiVo/Echostar case.


----------



## TexasAg

PPC1 said:


> You do not get the U.S. Patent & Trademark office to invalidate the patent claim of another party.


The process is called reexamination, and it happens more and more often. It is often something that a defendant being sued tries to initiate. If a reexam is initiated, most courts will stay a patent lawsuit until the PTO resolves the reexam. Some courts don't (just ask RIM).



PPC1 said:


> What happens is when the infringer sues, the first defense asserted in the federal district court by the defendant almost invariably is that the patent was improperly issued because the technology was obvious. The parties then litigate the issue of obviousness in court. This is decided by the court as a matter of law-- meaning the trial judge decides the validity of the patent. After the court resolves the validity of the patent, the jury may adress at some later time whether the defendant infringed the patent, and if so damages.


Obviousness is often settled by the jury at the same time the jury decides infringement. Obviousness is not an issue that must be decided by a judge. Neither is the validity of a patent. Validity is often decided by a jury.

You may be thinking of a Markman hearing, where the court (the judge) decides what the claim terms mean. This basically establishes the scope of the claims in a patent. Once this is settled, it often allows many lawsuits to be resolved prior to trial (since it becomes clear whether a patent is infringed and whether it is valid). But if there is still an issue about infringement or validity, it gets decided by a jury.



PPC1 said:


> You are correct that you can get the U.S. Patent office to issue patents, even if the subject matter is obvious. What usually (but not invariably)happens is the patent office initially denies the patent application, the applicant then appeals the denial, and after some ritual handwringing the office then issues the patent. (I can't speak to procedures outside the U.S.)


You don't deal with the Patent Office very often, do you? They do lots of things, but simply performing some handringing and allowing obvious patents is not one of them. Sure, some bad ones get by, but that's why there is a process for re-examining them. I can tell you that they also reject patentable inventions, and it takes an appeal to get a patent issued.



BobCamp1 said:


> Well -- you can get the patent office to invalidate the claim, but the jury must assume the claim is valid during trial. Which is sad, because the patent office takes so long review it that the trial usually finishes first or a settlement has been reached. Then when it does get invalidated later, you find out you're paying that company for nothing (hint: put this escape clause in your settlement if you can). That didn't happen in this case -- this patent is clearly not obvious.


No, the jury does not need to assume that a patent is valid. The jury is told that a patent can only be invalidated with "clear and convincing" evidence, which is something more than "preponderance of the evidence" (typical for civil trials) and less than "beyond a reasonable doubt" (typical for criminal trials). The jury is not required to simply assume a patent is valid in a trial, though.



DaveDFW said:


> The reason is probably anyone's guess--mine is that they are patent-holder friendly.


The Eastern district of Texas originally became popular because it had a rocket docket (patent cases could be heard relatively quickly, instead of after a lengthy delay). I do think that it has developed a reputation as being "patent owner-friendly" since then.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## VCD

BlackBetty said:


> can't you guys start a new thread on health care and leave this one for the original subject?


I sure wish they would. It is so very easy to start a new thread, it only takes 2 minutes. Please give those people interested in this thread topic a break and start your own thread.


----------



## ZeoTiVo

VCD said:


> I sure wish they would. It is so very easy to start a new thread, it only takes 2 minutes. Please give those people interested in this thread topic a break and start your own thread.


slightly less time than to create a new ID?


----------



## PPC1

Curtis said:


> "Acting on a request filed last year by EchoStar, the USPTO ordered a re-examination of TiVo's patent on Dec. 15, 2005, according to the patent office's Web site."
> 
> http://www.law.com/jsp/article.jsp?id=1146051863938


See, this is why lawyers shouldn't dabble in patent law.


----------



## bidderman9

I thought the Patent office already re-examined their patent and upheld the patent. I also thought the decision was final and unappealable?

http://arstechnica.com/news.ars/post/20071129-patent-office-upholds-key-tivo-patent-at-issue-in-echostar-lawsuit.html


----------



## Curtis

bidderman9 said:


> I thought the Patent office already re-examined their patent and upheld the patent. I also thought the decision was final and unappealable?


Has anyone said anything different?


----------



## rainwater

Curtis said:


> Has anyone said anything different?


The patent office just said they were going to re-examine the patent.


----------



## DPF

rainwater said:


> The patent office just said they were going to re-examine the patent.


No, that was from two years ago. There is no re-re-examination.


----------



## ZeoTiVo

DPF said:


> No, that was from two years ago. There is no re-re-examination.


I think he meant that they would only do a re-examination for what DISH opened up along side the countersuit. And yes the Patent office found the patents in order and closed the re-examination some time ago.

Validity of the patents is a non issue unless DISH can come up with something new- which they have repeatedly failed to do but instead try and rehash old junk.


----------



## BlackBetty

I'm surprised that TiVo hasn't filed a flurry of motions as soon as the appeal became mandated a week and a half ago.


----------



## Curtis

BlackBetty said:


> I'm surprised that TiVo hasn't filed a flurry of motions as soon as the appeal became mandated a week and a half ago.


TiVo has until May 16 to file their motions. Dish responds May 23. Filing now would not be a good strategic move.


----------



## bidderman9

Will TIVO's motion be publicly available shortly after filing?


----------



## old7

bidderman9 said:


> Will TIVO's motion be publicly available shortly after filing?


That depends on how they file them. If the file electronic copies, then yes they could be up that day or the next. If they file paper copies, then it could take a few days or longer before they up.


----------



## BlackBetty

Curtis said:


> TiVo has until May 16 to file their motions. Dish responds May 23. Filing now would not be a good strategic move.


Curtis you seem to be knowledgeable on this topic. I'd love to hear your take on how you think this will all play out. Do you think Judge Folsom will budge on his injunction and give E* time to argue its case about no longer infringing due a software download they sent out a while back.

I hope Folsom is firm on his injunction and makes E* turn off thier DVR's.


----------



## Curtis

BlackBetty said:


> Curtis you seem to be knowledgeable on this topic. I'd love to hear your take on how you think this will all play out. Do you think Judge Folsom will budge on his injunction and give E* time to argue its case about no longer infringing due a software download they sent out a while back.
> 
> I hope Folsom is firm on his injunction and makes E* turn off thier DVR's.


I think Judge Folsom will find Dish in contempt for not shutting off the DVRs and not stopping new activations. He will assess damages as if there was no workaround installed. Dish will appeal all of this and ask for a stay. Judge Folsom will deny a stay but they might get one from the appeals court like they did last time. Somewhere in there the hardware claims will most likely be revisited and the new DVRs have to be looked at with possibilities for more appeals and stays. It should be interesting.


----------



## ZeoTiVo

Curtis said:


> I think Judge Folsom will find Dish in contempt for not shutting off the DVRs and not stopping new activations.


I thought DISH sent a letter to all suppliers/contractors to stop the spcified models from entering the market to be activated.

So it would be colorably thesame DVRs being activated and of course we have heard nothing from the courts on what other models if any are indeed colorably the same.

personal opinion
and if DISH gets to appeall the injunction again then something is just wrong with the system.

So it would seem that going after the hardware part and nailing that down would be TiVo's only real course of action barring reaching some agreement with DISH, which of course seeems very unlikely any agreement would happen.

so it looks like the score is
lawyers 2 and companies 0


----------



## Greg Bimson

ZeoTiVo said:


> I thought DISH sent a letter to all suppliers/contractors to stop the spcified models from entering the market to be activated.


Rather than post the letter, Dish Network has followed the injunction in this manner:

Notified all agents and affiliates by giving them a copy of the injunction. However, they also included a letter that explained why the agents and affiliates don't have to follow certain parts of the injunction.

Stopped sales of the 721, 921, 942 and 1022 (1022 wasn't listed in the injunction). These are running exactly as they were two years ago, so they still infringe. However, it is believed that the total of these units in service is less that the 192,708 that Dish Network is allowed to keep on.

What wasn't followed in the injunction:
Dish Network is continuing to sell all other models of DVR, because they believe their new software no longer infringes. That includes the listed 501, 508, 510 and 625, along with the two-years-old 622 and 722.

Dish Network has not stopped DVR functions in these receivers, possibly because the 30 days has yet to run out when you count non-stayed days. If by 20 May these aren't turned off, this would be another violation of the injunction.

The whole basis for Dish Network ignoring the injunction is that they have new software which they believe does not infringe upon the Time Warp patent any longer. I personally believe if they think they can win the software issue in a contempt proceeding, they are fighting the wrong battle.

Meanwhile, if I were TiVo, I'd fight for the hardware claims. That just sharpens the teeth of the injunction.


----------



## TexasAg

Curtis said:


> I think Judge Folsom will find Dish in contempt for not shutting off the DVRs and not stopping new activations. He will assess damages as if there was no workaround installed. Dish will appeal all of this and ask for a stay. Judge Folsom will deny a stay but they might get one from the appeals court like they did last time. Somewhere in there the hardware claims will most likely be revisited and the new DVRs have to be looked at with possibilities for more appeals and stays. It should be interesting.





Greg Bimson said:


> Meanwhile, if I were TiVo, I'd fight for the hardware claims. That just sharpens the teeth of the injunction.


The appeals court divided Tivo's claims into 2 groups: "hardware" and "software".

The appeals court said the "hardware" claims were not literally infringed, meaning Dish did not literally do everything in those hardware claims. The appeals court left open the possibility that Dish infringed under the doctrine of equivalents (which requires evidence that Dish's DVRs perform substantially the same function in substantially the same way to produce substantially the same result). However, that would require a separate trial (most likely with a jury if either side wants it). The judge can't simply revisit the hardware claims right now and issue a permanent injunction. The whole process has to repeat itself (preliminary injunction, trial, decision, appeal, permanent injunction with any luck for Tivo). At this point, the permanent injunction cannot be based on the hardware claims since there has been no upheld verdict of infringement of those claims.

The appeals court agreed that the "software" claims were infringed. But since it was the software that infringed the claims, Dish could replace the software in their DVRs. As long as the new software doesn't infringe, the court can't shut down the DVR software. If the court tried, Dish could appeal and argue that the injunction is over-broad (which would be a pretty good argument). So, it will just come down to how well Dish designed around the software claims. If they did a good enough job, Dish could continue without shutting down the DVR functionality.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> The appeals court agreed that the "software" claims were infringed. But since it was the software that infringed the claims, Dish could replace the software in their DVRs. As long as the new software doesn't infringe, the court can't shut down the DVR software. If the court tried, Dish could appeal and argue that the injunction is over-broad (which would be a pretty good argument). So, it will just come down to how well Dish designed around the software claims. If they did a good enough job, Dish could continue without shutting down the DVR functionality.


So all Dish has to do each time a software ruling goes against them is say "wait... we've fixed it for sure this time. We can't be required to shut down the DVRs. We demand another trial". I think they need to shut down the DVRs in compliance with the injunction until such time as they are able to get it resolved in court. It took TiVo four years.


----------



## TexasAg

Curtis said:


> So all Dish has to do each time a software ruling goes against them is say "wait... we've fixed it for sure this time. We can't be required to shut down the DVRs. We demand another trial". I think they need to shut down the DVRs in compliance with the injunction until such time as they are able to get it resolved in court. It took TiVo four years.


As I said, the court cannot keep Dish from installing and using non-infringing software on its DVRs. After Dish installs non-infringing software on its DVRs (and the court acknowledges that this has happened), the court loses its ability to order those DVRs shut down. No future infringement means no additional harm to Tivo, and irreparable harm to Tivo is a requirement for the injunction. The court could try, obviously, but that likely wouldn't hold up on appeal. There is no "we've waited 4 years so you can't fix your product to avoid infringement" argument.

If Tivo pushes the issue, I would expect Dish to file a motion to modify the injunction, arguing that their software no longer infringes. Of course, the court could (and probably would, I imagine) order Dish to shut down the DVRs until the hearing has occurred and Dish has shown that it no longer infringes.

You can see how Tivo was hurt by losing on the hardware claims. Dish couldn't easily change the existing hardware in people's homes, but it's real easy to change the software on the boxes in people's homes.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> However, that would require a separate trial (most likely with a jury if either side wants it). The judge can't simply revisit the hardware claims right now and issue a permanent injunction.


I'm the one that believes TiVo should go back and ask the judge for a summary judgment on the hardware claims. After all, the hardware issue is on trial record, and those material facts haven't changed from the trial two years ago. The hardware claim instructions are now practically bulletproof, as they've already been interpreted by the Court of Appeals. I honestly believe that is the best route to go.

I would think Judge Folsom could take a look at the record and make a decision based on the facts of the case. The Court of Appeals said they would have decided had the parties briefed the court. I would think that Judge Folsom could still make a decision if the parties brief him, which they most likely will.


TexasAg said:


> If Tivo pushes the issue, I would expect Dish to file a motion to modify the injunction, arguing that their software no longer infringes. Of course, the court could (and probably would, I imagine) order Dish to shut down the DVRs until the hearing has occurred and Dish has shown that it no longer infringes.


Of course. But I'd suspect that DISH/SATS will ignore the injunction and any accept any fines that go along with it. That's not exactly a great move, but one that will have the Dish Network throngs cheering for standing up to "the man." On other boards, people seem to think an injunction is simply a piece of paper, like Charmin, where stuff can be wiped from it at any time. This needs to have teeth in it, and TiVo needs to enforce it, or have the courts enforce it.


----------



## TexasAg

Greg Bimson said:


> I'm the one that believes TiVo should go back and ask the judge for a summary judgment on the hardware claims. After all, the hardware issue is on trial record, and those material facts haven't changed from the trial two years ago.


Infringement under the "doctrine of equivalents" is almost always a jury issue. It is a highly factual issue, and the jury gets to decide factual issues if either side requests it. Summary judgment must be denied if there is any issue of material fact that is in dispute. In order to be granted summary judgment here, Tivo has to show that no reasonable jury could conclude that Dish's DVRs don't infringe under the doctrine of equivalents. Tivo has to show this even though all favorable inferences are drawn in Dish's favor.

Even though both sides may have presented their evidence at trial, it is basically up to the jury to decide whether Dish's DVRs perform substantially the same function in substantially the same way to produce substantially the same result. The jury (not the judge) has to decide which experts to believe, which testimony to accept as true, etc. It is extremely unlikely for summary judgment to result in a finding of infringement. I believe it would be more likely (although not by much) for Dish to show they don't infringe under the doctrine of equivalents. If they do something completely different than the claims say, the judge could easily rule that no jury could find infringement under the doctrine of equivalents.

And don't forget, Tivo had some harmful claim interpretations for their hardware claims. This makes it more difficult to prove infringement under the doctrine of equivalents.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## curtis0620

The Jury found them to literally infringe on the hardware claims. I think finding them guilty under the "Doctrine of Equivalents" is a given.


----------



## TexasAg

curtis0620 said:


> The Jury found them to literally infringe on the hardware claims. I think finding them guilty under the "Doctrine of Equivalents" is a given.


Except the appeals court reversed that finding for 2 reasons:

(i) "Separation" of audio and video streams: The appeals court said that this part of Tivo's patent claims requires separation of the audio and video streams into distinct buffers. It does not encompass "mere logical separation." Dish's DVRs implemented using the Broadcom chip used logical separation.

(ii) "Assembling" of audio and video components: The appeals court said that this part of Tivo's patent claims requires audio and video components to be combined into a single output stream. Dish's DVRs output separate MPEG streams.

Both of these issues were decided at the appeals court level against Tivo, and both restrict the coverage of their patent claims. You can't use a jury verdict based on an overly-broad claim interpretation to say there is no doubt about infringement using the narrower claim interpretation.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> Infringement under the "doctrine of equivalents" is almost always a jury issue. It is a highly factual issue, and the jury gets to decide factual issues if either side requests it.


But that is part of my point. The facts are already in the transcripts. I'd have to go back and take a look at the old thread which covered the trial, but I am fairly certain DISH/SATS didn't fight so hard on the hardware infringement. The facts of the case are pretty much indisputable.


TexasAg said:


> Both of these issues were decided at the appeals court level against Tivo, and both restrict the coverage of their patent claims. You can't use a jury verdict based on an overly-broad claim interpretation to say there is no doubt about infringement using the narrower claim interpretation.


But you've missed one important point: the jury's verdict was based on literal infringement, while the narrower claim interpretation would be based upon infringement through the doctrine of equivalents. These two claim constructs would still, more than likely, be interpreted as equivalent.

Remember, the Court of Appeals would have ruled upon infringment under the doctrine of equivalents had they been briefed on it. That briefing can take place now at the District Court level. It is exactly why TiVo has to brief the Court on 16 May. Any outstanding issues are to be heard. And this could be one outstanding issue, along with the damages and the injunction.


----------



## ZeoTiVo

Greg Bimson said:


> But that is part of my point. The facts are already in the transcripts. I'd have to go back and take a look at the old thread which covered the trial,





ZeoTiVo said:


> the previous thread is
> http://www.tivocommunity.com/tivo-vb/showthread.php?t=293670


----------



## TexasAg

Greg Bimson said:


> The facts are already in the transcripts.


Yes, the facts and opinions are in the transcript, and the facts and opinions conflict (opinions are evidence, too). In order to grant summary judgment, the judge has to make all inferences in a manner that is favorable to Dish. Also, the judge cannot decide which witnesses to believe and which witnesses to ignore since that is the jury's job. Basically, all Dish has to do is show that there is some evidence (not a lot, just some) supporting non-infringement under the doctrine of equivalents, and the judge cannot grant summary judgment. In legal jargon, it means there is at least one issue of material fact, and summary judgment cannot occur.



Greg Bimson said:


> But you've missed one important point: the jury's verdict was based on literal infringement, while the narrower claim interpretation would be based upon infringement through the doctrine of equivalents.


No, the appeals court decided what the scope of the claims should be. That affects both literal infringement and infringement under the doctrine of equivalents. The claim scope is the same for both types of infringement.

Think of it this way - before the jury trial, the trial judge held hearings and decided what the scope of the claims should be. Tivo and Dish then went through a jury trial arguing over whether Dish infringed the claims as interpreted by the judge. The appeals court basically said that the trial court messed up when it decided what the scope of the hardware claims should be. Therefore, the jury verdict regarding literal infringement doesn't matter since it was based on the wrong interpretation of the claims. You can't use a verdict based on the wrong claim interpretation to show infringement under the doctrine of equivalents since it was still based on the wrong claim interpretation.



Greg Bimson said:


> Remember, the Court of Appeals would have ruled upon infringment under the doctrine of equivalents had they been briefed on it. That briefing can take place now at the District Court level. It is exactly why TiVo has to brief the Court on 16 May. Any outstanding issues are to be heard. And this could be one outstanding issue, along with the damages and the injunction.


No, they couldn't. The appeals court noted 2 problems with Tivo's argument about the doctrine of equivalents. The second problem was what it wasn't briefed. The first (and biggest) problem is that the jury never made any decision regarding the doctrine of equivalents, so "there was no verdict on the issue of equivalents with regard to the hardware claims." The court can't review an imaginary jury verdict.

The only way Tivo can avoid a new jury trial over the hardware claims is if Tivo can show that all the evidence, construed in Dish's favor, would not allow a jury to decide any other way but for Tivo.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## curtis0620

Here's the part that may still get the hardware (from the Appeals court ruling):

At several points, TiVo argues that even if this court were to overturn the jury&#8217;s verdict of literal infringement, there would still be ample evidence of infringement under the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court&#8217;s instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.


----------



## Greg Bimson

> At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents...


And then something regarding the jury. The Court of Appeals could have upheld the judgment if they were briefed.

If a new trial was needed, why wasn't the guilty verdict simply vacated, and remanded for a new trial? The Court of Appeals certainly could have done that. In this case, they did not. Something _can_ be done about this at the District Court level, otherwise the Court of Appeals would have simply vacated and remanded the case.


----------



## TexasAg

curtis0620 said:


> Here's the part that may still get the hardware (from the Appeals court ruling):
> ...
> At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it.


This is simply saying that the appeals court could have upheld a finding of infringement under the doctrine of equivalents on this appeal only if no reasonable jury could conclude otherwise. This is because the appeals court was reversing the finding of literal infringement. Since there was no literal infringement, the appeals court had 2 options: (i) remand to the lower court to determine if there is infringement under the doctrine of equivalents, or (ii) rule that Tivo still wins on the hardware claims because no reasonable jury could find non-infringement under the doctrine of equivalents. The appeals court chose option (i).



Greg Bimson said:


> If a new trial were needed, why wasn't the guilty verdict simply vacated, and remanded for a new trial?


Because there was no "guilty" verdict on the doctrine of equivalents. The appeals court only had the jury's decision to look at regarding literal infringement. The appeals court did vacate that decision, based on an improper interpretation of the claims. The appeals court also sent the hardware issue back to the district court for further consideration (ie Tivo can ask for a new trial or summary judgment).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> The appeals court also sent the hardware issue back to the district court for further consideration (ie Tivo can ask for a new trial or summary judgment).


That was all I wanted to say...

I believe it is 50/50 that TiVo will ask for a summary judgment, and 50/50 that one would be granted. The alternative is an expedited bench trial, or a full-blown trial, both of which could take time.


----------



## TexasAg

Greg Bimson said:


> I believe it is 50/50 that TiVo will ask for a summary judgment, and 50/50 that one would be granted. The alternative is an expedited bench trial, or a full-blown trial, both of which could take time.


Since it's a doctrine of equivalents issue, I put it at 95-5 against Tivo on summary judgment. And Dish can ask for a jury trial if it wants.

I just want them to pay Tivo through the nose and get it over with.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## bidderman9

Been kinda quiet here lately. Everybody waiting for Friday? Is there a web site that we might be able to view the TIVO filing if it is filed electronlically?


----------



## Daven

bidderman9 said:


> Been kinda quiet here lately. Everybody waiting for Friday? Is there a web site that we might be able to view the TIVO filing if it is filed electronlically?


A friend of mine monitors the Courts PACER ($$) site. They post the filings there. When the filings are available he'll download them, and post a link to them over at the InvestorVillage TiVo board. Look for his user name (Mainer_ayah).


----------



## curtis0620

http://biz.yahoo.com/ap/080515/tivo_ahead_of_the_bell.html?.v=1


----------



## timckelley

SWEET! TiVo has Dish over a barrel, and has made them cry Uncle. May TiVo show no mercy in the terms it lays out for Dish in this settlement.


----------



## madbeachcat

timckelley said:


> SWEET! TiVo has Dish over a barrel, and has made them cry Uncle. May TiVo show no mercy in the terms it lays out for Dish in this settlement.


You sir are awfully bloodthirsty. And no, I don't have now nor have I ever had Dish network.


----------



## ZeoTiVo

timckelley said:


> SWEET! TiVo has Dish over a barrel, and has made them cry Uncle. May TiVo show no mercy in the terms it lays out for Dish in this settlement.


Umm, that is just the analyst saying the same thing we have said in this thread except we do not do it professionally. 

edit - deleted stupid stuff. See GoHokies post for a chuckle


----------



## GoHokies!

ZeoTiVo said:


> Umm, that is just the analyst saying the same thing we have said in this thread except we do not do it professionally.
> 
> Now there seems to be no filings from the may 30th conference so eitehr it is the ole - wait for end of deadline to file or else some other agreement was reached in the conference and neither side has seen fit to say anything publicly yet.


I would expect that we wouldn't see any results from the meetings until it actually happens in 2 weeks.


----------



## ZeoTiVo

GoHokies! said:


> I would expect that we wouldn't see any results from the meetings until it actually happens in 2 weeks.


oh............. yah, I err,umm had April 30th in my head while typing um- ..... not....... April 30th


----------



## Curtis

"We have believed that there would be some day of reckoning on the part of Dish despite its efforts to push the date out; that date may be close at hand. Our recent checks with patent attorneys familiar with the process suggest that the judge's hands are likely to be tied on the issue of enforcing the injunction that was confirmed by the appeals court on Jan. 31. Specifically, we expect the judge to far prefer erring on the side of conservatism and turn off all the Dish DVR models specified in the injunction, rather than risk allowing some infringing DVRs to possibly remain on while the question of the Dish work-around is resolved.

While we have no way of evaluating Dish's design-around of course, the point may be moot for purposes of the enforcement of the injunction, which could force Dish to at least offer TiVo something to keep its DVRs working, even temporarily."

http://online.barrons.com/article/SB121081057432193629.html?mod=googlenews_barrons


----------



## Daven

GoHokies! said:


> I would expect that we wouldn't see any results from the meetings until it actually happens in 2 weeks.


Actually, we should be seeing the filings requested by Judge Folsom. TiVo's is due tommorow, and E*'s is due on the 23rd.


----------



## HiDefGator

timckelley said:


> SWEET! TiVo has Dish over a barrel, and has made them cry Uncle. May TiVo show no mercy in the terms it lays out for Dish in this settlement.


i wouldn't count those chickens just yet. tivo hasn't offically won yet, dish hasn't settled, ...as with OJ anything can happen in court.


----------



## Win Joy Jr

HiDefGator said:


> i wouldn't count those chickens just yet. tivo hasn't offically won yet, dish hasn't settled, ...as with OJ anything can happen in court.


Uh, yes, TiVo won...

And this is civil court, in case you havent noticed...


----------



## ZeoTiVo

Win Joy Jr said:


> Uh, yes, TiVo won...
> 
> And this is civil court, in case you havent noticed...


yah, OJ lost in Civil court. How much has he paid out on that yet? Most likely he has paid more in green fees since, then on the Civil judgement.........................................


----------



## ZeoTiVo

Curtis said:


> "We have believed that there would be some day of reckoning on the part of Dish despite its efforts to push the date out;


Don't have a sub. Was that Barron's Analysis or was that quoted from a TiVo statement?

Either way that was some fairly solid analysis :up:


----------



## Curtis

ZeoTiVo said:


> Don't have a sub. Was that Barron's Analysis or was that quoted from a TiVo statement?


 It was a Friedman Billings Ramsey upgrade note that Barrons published.


----------



## Phantom Gremlin

ZeoTiVo said:


> yah, OJ lost in Civil court. How much has he paid out on that yet?


Well, he did lose the Heisman trophy. How much is that worth?


----------



## BlackBetty

http://www1.investorvillage.com/smbd.asp?mb=3928&mn=26653&pt=msg&mid=4793899


----------



## ZeoTiVo

BlackBetty said:


> http://www1.investorvillage.com/smbd.asp?mb=3928&mn=26653&pt=msg&mid=4793899


Bold added by me


> B. TOPICS OF DISCUSSION
> 1. Enforcement of the Permanent Injunction
> Although the injunction required EchoStar to disable the DVR functionality, with
> respect to the Infringing Products, EchoStar has refused to do so. Despite the plain language
> of the injunction, EchoStar argues that it need not disable the DVR functionality because it
> has modified its software so that it supposedly no longer infringes TiVos patent. *On May
> 12, 2008, EchoStar made its modified source code available for review by TiVo*. EchoStar
> also waived privilege and produced to TiVo three opinions of counsel relating to EchoStars
> modified software. After review of the software that EchoStar provided and the opinion
> letters, *TiVo does not believe that the modifications avoid infringement*. In fact, TiVo
> believes that EchoStar is violating the Courts injunction in at least three different ways.





> In opposing EchoStar's language, TiVo warned that EchoStars formulation would be a recipe for abuse:
> This clever formulation is an invitation for EchoStar to engage in mischief.
> Such an injunction would only result in EchoStar providing what it deemed
> as non-infringing DVR software to its already-found-to-be-infringing
> DVRs, *creating the opportunity for interminable disputes to determine what
> exactly is infringing DVR software.*
> (TiVo's (1) Reply Re Motion for Entry of Judgment and Permanent Injunction and (2)
> Opposition to EchoStar's Cross-Motion to Stay Injunction, Docket No. 747, at 11). *This
> Court rejected EchoStars proposal and adopted, instead, the straightforward disable the
> DVR functionality provision that appears in the Permanent Injunction.*If EchoStar believed that the disable the DVR functionality provision of the
> injunction was inappropriate, EchoStar could have challenged it, but  despite multiple
> opportunities before both this Court and the Federal Circuit  it chose not to do so.





> In particular, EchoStar is taking the position that
> it can place new infringing DVRs on an ongoing basis, as long as the total number of
> infringing DVRs does not exceed 192,708. *The Court's language, however, is clear: the
> 192,708 number applies to existing DVRs that had already been placed with customers.
> The injunction prohibited EchoStar from delivering any new infringing DVRs*.





> Regarding the modified software, the court need only
> compare it to the original infringing product. Unless there is more than a colorable
> difference between the two, a contempt proceeding is appropriate. KSM Fastening Sys.,
> Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985). Then, so long as the modified
> software falls within the . . . adjudicated scope of the [patent] claims, EchoStar is in
> contempt of court. KSM Fastening, 776 F.2d at 1530





> To that end, TiVo asked EchoStar to provide certain information related to the
> assessment of damages during the stay period, e.g., the number of infringing units and
> *financial information related to EchoStar's nationwide "Better Than TiVo" advertising
> campaign undertaken during the stay period to attract new customers at TiVo's expense.*
> EchoStar refused to provide informally most of the damages information that TiVo has
> requested. Accordingly, TiVo requests permission for limited formal discovery relating to
> the damages issues. Once TiVo has obtained the information from EchoStar, TiVo will
> promptly file a motion requesting those damages.
> 
> Respectfully submitted,
> Morgan Chu
> Counsel for Plaintiff TiVo Inc.


Go TiVo


----------



## Budget_HT

Finally, some real information to replace much of the speculation that has been kicking around here for quite a while.


----------



## Daven

http://southernme.com/DAVY_v_GOLIATH/5-16_filing_with_exhibits.pdf

--Mainer


----------



## Curtis

Budget_HT said:


> Finally, some real information to replace much of the speculation that has been kicking around here for quite a while.


Very helpful. Thanks.


----------



## GoHokies!

Wow, good stuff.

I'd love to see the "better than Tivo" ad campaign turned right back around at old Charlie.

In fact, Tivo should start a "It can't be better than Tivo, becuase it is Tivo (we're just not getting paid)" ad campaign that warns Dish customers that they are about to lose their DVRs, then offer to sell them a Tivo at a sweet price. I can certainly see them teaming with Comcast (since they have an existing business agreement) and really firing up the Dish bashing machine.


----------



## dswallow

Daven said:


> http://southernme.com/DAVY_v_GOLIATH/5-16_filing_with_exhibits.pdf
> 
> --Mainer


Damn, I had been hoping that serious typo in the letter had just been a typo in the transcript that was posted, but apparently it is that way in what was sent to the judge.

_From Page 2, Section A, Paragraph 1:_

On September 8, *2008*, this Court entered a Final Judgment and Permanent Injunction...


----------



## usnret

Does this little error matter in documents such as this:

.


> A. BACKGROUND
> 
> On September 8, 2008, this Court entered a Final Judgment and Permanent Injunction
> 
> against all defendants (collectively "EchoStar") for willful infringement of U.S. Patent No.
> 
> ........


----------



## usnret

dswallow beat me. sri for the dupe


----------



## Curtis

dswallow said:


> Damn, I had been hoping that serious typo in the letter had just been a typo in the transcript that was posted, but apparently it is that way in what was sent to the judge.
> 
> _From Page 2, Section A, Paragraph 1:_
> 
> On September 8, *2008*, this Court entered a Final Judgment and Permanent Injunction...


What you are looking at has apparently been OCR'd from a fax. See the staple? Maybe the original is correct.


----------



## Budget_HT

Curtis said:


> Very helpful. Thanks.


I guess I should have been more clear in my statement.

I very much appreciate most of the opinions I have been reading here.

I was not meaning to complain about the speculation, but I am pleased to finally know exactly how TiVo is proceeding at this point.

My thanks go out to the folks here who are in or near the legal profession. Your explanations of what can be done, within the law etc., have helped me understand just how this might turn out.

Sorry if I came across as critical, that was not my intent at all.


----------



## Daven

Curtis said:


> What you are looking at has apparently been OCR'd from a fax. See the staple? Maybe the original is correct.


The PDF file you are viewing was downloaded from the courts PACER system, and its source is the electronic filing system that TiVo's attorneys used to file the documents. I believe, however, that normally the filing is followed up with a hard copy by mail. Perhaps someone will catch the typo on it. I doubt if it makes any difference anyway, the fact that it is a simple clerical error is obvious.

--Mainer


----------



## SullyND

Daven said:


> The PDF file you are viewing was downloaded from the courts PACER system, and its source is the electronic filing system that TiVo's attorneys used to file the documents.


Then why does it say "VIA FACSIMILE (903) 794-1224"?


----------



## Daven

SullyND said:


> Then why does it say "VIA FACSIMILE (903) 794-1224"?


_It must be because I was lying about the source of the document. It is really something I composed myself, and scanned to a PDF._

Regardless of how it was electronically entered into the system, the PDF you are viewing is from the court's system. If you want to verify it go to the court's PACER system, establish an account, and pay to download it yourself. Then when you offer to share it, you can get **** on by all the fighting Irish morons that don't realize faxes are electronic, and computers have fax modems.

Despite the fact that it was Faxed, this document has not been OCR'd it is the original scan (albeit via a fax modem to another fax modem) embedded in a PDF. If it says sept 2008, the original document says sept 2008.


----------



## BlackBetty

lol


----------



## bidderman9

Any of the legal types want to chime in with any comments on the document that was filed with the court? I do have 1 question. Can the Judge possibly find Echostar in Contempt of court as a result of the two companies filings or would that require a separate hearing?


----------



## 20TIL6

bidderman9 said:


> Any of the legal types want to chime in with any comments on the document that was filed with the court? I do have 1 question. Can the Judge possibly find Echostar in Contempt of court as a result of the two companies filings or would that require a separate hearing?


I don't know if I qualify as a legal type, but I think E* is definitely in contempt. They flatly did not comply with the ordered injunction. The stay that they had during the appeal process dissolved as soon as their appeal was lost. There is a standing order to disable their DVRs, and they did not comply with that. That's contempt.

And the work-around software that they assert does not infringe and has already been deployed does not matter. No court has offered that as an option. In fact, TiVo mentions in their last filing that E* was denied that exact alternative during the litigation.

E*'s actions are a clear indication that they believe themselves to be above the court's rulings. They are in contempt as we speak.


----------



## Daven

bidderman9 said:


> Any of the legal types want to chime in with any comments on the document that was filed with the court? I do have 1 question. Can the Judge possibly find Echostar in Contempt of court as a result of the two companies filings or would that require a separate hearing?


I'm not sure if a contempt hearing is required or not, but if one is I bet it will be pretty cut and dried, and damn short as long as judge Folsom retains control. I don't think there is anything to stop Folsom from turning the meeting on the 30th into a contempt hearing. He'll have all the parties and their positions on the matter (since TiVo has already put forth the request, with their reasoning).


----------



## MichaelK

I have a question- if any of the legal folks cares to chime in:

there was some scuttlebutt from the last time Dish had a pissing match in court- about the out of market locals- that injunctions once they become effective can not be overturned even by the plantiff. 

In other words-the theory went that- now that dish has gone so far without settling that the injunction is now in place- that it is permanent. Even if they settle with tivo and tivo agreed to let it go, there is no mechanism for the judge to lift it.

is that true?


----------



## Greg Bimson

MichaelK said:


> In other words-the theory went that- now that dish has gone so far without settling that the injunction is now in place- that it is permanent. Even if they settle with tivo and tivo agreed to let it go, there is no mechanism for the judge to lift it.
> 
> is that true?


Not here.

The problem with the distant locals case is that the mandatory relief according to the law, for someone that uses the license in a manner that shows a pattern or practice of willful infringement, will be subject to a permanent injunction, barring that company from using that license. Dish Network is forever prohibited from offering distant networks using the license unless the law is changed, passed as a bill by Congress and signed into law by the President.

In this case, the injunction is permanent until TiVo and Echostar/Dish Network settle. For the right price, TiVo will ask the court to remove the injunction, as this injunction wasn't issued because the law states it needs to be done. This injunction was issued and can be removed at TiVo's request.


----------



## MichaelK

thanks for explanation-

I didn't know the distant locals injunction was based on a law- I thought it came solely from a lawsuit from the networks.


----------



## Greg Bimson

MichaelK said:


> thanks for explanation-
> 
> I didn't know the distant locals injunction was based on a law- I thought it came solely from a lawsuit from the networks.


It was. The law states if a pattern or practice of willful infringement is found, that an injunction must be issued. Because the injunction is mandated by law, it cannot be ignored.

That is unlike patent law, where an injunction can be issued, but can also be dismissed at any time. There is no law regarding patent infringement that states a permanent injunction must be issued. One is usually issued if irreparible harm justifies an injunction, but that can be dismissed with a settlement.


----------



## BlackBetty

E* submitted a $500M debt offering today. Hmm settlement on the horizon? Maybe lump sum payment.


----------



## timckelley

BlackBetty said:


> E* submitted a $500M debt offering today.


That can't have felt good.


----------



## David Scavo

BlackBetty said:


> E* submitted a $500M debt offering today. Hmm settlement on the horizon? Maybe lump sum payment.


It ended up 50% bigger than that !

May 20 (Reuters) - EchoStar DBS Corporation, a subsidiary
of DISH Network Corporation (DISH.O: Quote, Profile, Research), on Tuesday sold $750 million of seven-year senior notes, said market sources.

The size of the deal was increased from the originally planned $500 million.

http://www.reuters.com/article/marketsNews/idINN2065350520080520?rpc=44


----------



## bidderman9

Wow, 750 Mil. Sure sounds like payday is coming!


----------



## samo

bidderman9 said:


> Wow, 750 Mil. Sure sounds like payday is coming!


Could it be a prep for hostile takeover bid? And before poison pill gets mentioned, it is technically possible to get controlling interest in TiVo for less than $750 mil. including poison pill. It is not nesseserily practical or is a good deal for Dish, but it is possible.


----------



## GoHokies!

Make that $750,001,050! 

http://www.theregister.co.uk/2008/05/20/dish_nds_hacking_peanuts/

Edit to add: Anyone want to speculate what Tivo would do if suddenly 750 mil dropped into their pockets?


----------



## ZeoTiVo

samo said:


> Could it be a prep for hostile takeover bid? And before poison pill gets mentioned, it is technically possible to get controlling interest in TiVo for less than $750 mil. including poison pill. It is not nesseserily practical or is a good deal for Dish, but it is possible.


it would be obviously anti-competitive. I think such a takeover right now would face huge federal hurdles


----------



## 20TIL6

ZeoTiVo said:


> it would be obviously anti-competitive. I think such a takeover right now would face huge federal hurdles


Only if TiVo's IP and patents are considered defended and completely validated as part of this whole ordeal. Up until now, TiVo has not enjoyed very much success even though they have the IP. At this point, on paper, all that DISH would be buying is a company that has consistently lost money and has been losing marketshare due to the placement of generic DVRs by the MSO's. No real competitive advantage there, again, on paper.

But if this settlement comes out with TiVo's IP completely protected, then your point is taken.


----------



## samsauce29

ZeoTiVo said:


> it would be obviously anti-competitive. I think such a takeover right now would face huge federal hurdles


Just curious why this would be anti-competitive. TiVo does not broadcast anything, so if they were acquired, Dish, DirecTv, and cable companies would all have some sort of DVR.


----------



## bidderman9

A cable company (Comcast) would have to come to DISH for TIVO? Sounds like Dish would definately have an edge over the cable company.


----------



## stoneharry

samo said:


> Could it be a prep for hostile takeover bid? And before poison pill gets mentioned, it is technically possible to get controlling interest in TiVo for less than $750 mil. including poison pill. It is not nesseserily practical or is a good deal for Dish, but it is possible.


I do not think so. As of yesterday's closing price, TIVO has a market cap of 885 million. Most takeovers are done with at least a 25 percent premium, so that would mean at least 1.106 billion.

I am not sure how much the poison pill adds to the cost. Anyone know?

Some articles place the worth of the TIVO patents at 2-3 billion. So it seems to me that buying the company would still leave the patents in TIVO's possession.


----------



## samsauce29

bidderman9 said:


> A cable company (Comcast) would have to come to DISH for TIVO? Sounds like Dish would definately have an edge over the cable company.


Forgot about that one... thanks.


----------



## stoneharry

Another point is this. Just 7 days ago DirecTV took on 2.5 billion in financing. This leads me to believe that the race between DISH and DirecTV to offer the most High Definition channels is costing both companies a lot of money.

http://biz.yahoo.com/bw/080514/20080514006103.html?.v=1


----------



## BobCamp1

stoneharry said:


> Some articles place the worth of the TIVO patents at 2-3 billion. So it seems to me that buying the company would still leave the patents in TIVO's possession.


Typically, when you buy a company, you buy its IPR too. That's usually explicitly stated in the deal.

I think you are all getting ahead of yourselves. E* has other things to do that they need cash for besides buy Tivo.


----------



## 1003

*EvilCastic*
has many DVR options that are not TiVo. While they may be less than thrilled with an Echostar purchase of TiVo, it would certainly not cause a business collapse...


----------



## stoneharry

BobCamp1 said:


> Typically, when you buy a company, you buy its IPR too. That's usually explicitly stated in the deal.
> 
> I think you are all getting ahead of yourselves. E* has other things to do that they need cash for besides buy Tivo.


I think so too. TIVO has 89 patents and another 109 pending patent approval. I have no trouble believing that their patent portfolio is worth at least 2.5 billion and with the current market cap at 885 million that means that DISH would have to come up with at least 3.4 billion. Not likely at all since they just borrowed 750 million at 7.75 percent. Their bond rating is less than prime so they could not get a lower interest rate.

Does the poison pill affect the purchase price? Anyone?

I know it gets triggered if anyone buys more than 15 percent of the company but I do not know if it involves financial consequences. The only reference I could find is one article stating that the poison pill defense against takeovers is usually the most bulletproof form of protection and that in the TIVO case it would require an *"insane"* purchase price.


----------



## MichaelK

stoneharry said:


> ...
> 
> Does the poison pill affect the purchase price? Anyone?
> 
> I know it gets triggered if anyone buys more than 15 percent of the company but I do not know if it involves financial consequences. The only reference I could find is one article stating that the poison pill defense against takeovers is usually the most bulletproof form of protection and that in the TIVO case it would require an *"insane"* purchase price.


not a broker or anything - and dont dabble in stocks really- but that's exactly the point. The poison pill is a way to make it crazy expensive to buy up a company.

there's different ways to do it- but usually it involves setting stock options or giving rights such that as soon as someone buys x% of a company tons more stocks get issued.

for example
Say the threshold tivo picked is 20%

E* would buy 20%
The Tivo poison pill would kick in and would cause so many more shares to get issues that E*'s stake is no longer 20% but maybe just 10 or even 5%. So now E* needs to buy twice as many or 4 times as many shares to gain control.


----------



## ZeoTiVo

JJ said:


> *EvilCastic*
> has many DVR options that are not TiVo. While they may be less than thrilled with an Echostar purchase of TiVo, it would certainly not cause a business collapse...


Bottom line Dish is in the business of seeling DVRs - you may all recall the OTA one they just put out. Sure they are shuffling the companies around to separate them from each other some but DISH buying TiVo would undo any little bit the FCC has done to promote innovation/competition in this market area. Allowing such a hostile takeover to get out of an already decided IP infringement case would be beyond belief.


----------



## timckelley

I'd prefer to believe that Dish is painfully scraping together what it owes TiVo.


----------



## stoneharry

MichaelK said:


> not a broker or anything - and dont dabble in stocks really- but that's exactly the point. The poison pill is a way to make it crazy expensive to buy up a company.
> 
> there's different ways to do it- but usually it involves setting stock options or giving rights such that as soon as someone buys x% of a company tons more stocks get issued.
> 
> for example
> Say the threshold tivo picked is 20%
> 
> E* would buy 20%
> The Tivo poison pill would kick in and would cause so many more shares to get issues that E*'s stake is no longer 20% but maybe just 10 or even 5%. So now E* needs to buy twice as many or 4 times as many shares to gain control.


Very interesting. I learned something today. Thanks.


----------



## samo

BobCamp1 said:


> Typically, when you buy a company, you buy its IPR too. That's usually explicitly stated in the deal.
> 
> I think you are all getting ahead of yourselves. E* has other things to do that they need cash for besides buy Tivo.


That is very much true. An it would be insane to pay $700 mil or so it would take get get controlling interest in TiVo (80+ % of TiVo stock is held by institutional investors. Plus poison pill would allow TiVo to increase number of outstanding shares by about 20%. So to get 51% of TiVo, Dish would have pay something around $600-700 mil assuming that funds would want to make 25 to 50% profit on a sale). Company that never made profit in 9 years is not worth that much - it would be money down a toilet. Much cheaper to settle and forget about it.


----------



## acvthree

>>>Much cheaper to settle and forget about it.

That statement has been true for a long time.

Al


----------



## herdfan

stoneharry said:


> I think so too. TIVO has 89 patents and another 109 pending patent approval. I have no trouble believing that their patent portfolio is worth at least 2.5 billion and with the current market cap at 885 million that means that DISH would have to come up with at least 3.4 billion.


What??? The market cap of 885M is what it would take in theory to buy 100% of TiVo' stock at the current price. You would get the patents in that price as you would own 100% of the company.

Currently the market does not value the patents at 2.5B, or if they do, they have deducted an extra 1.65B for other liabilities.


----------



## HiDefGator

I'm not sure you guys are thinking this through. If Dish bought Tivo, what would they do with them? They don't want the Tivo software. Dish already has competitive DVR software that does what they want and they wrote it. Do you really think they would dump their own software for Tivo's? Tivo's software doesn't even run on the Dish boxes today. 

They would be buying Tivo solely to get out of paying them future royalties. That wouldn't make sense since Tivo's patents expire in a decade. 

All of Tivo's revenue today comes from its standalone business. A business model that even Tivo admits is not going anywhere. 

You might also have noticed that E* just agreed to pay like 700 million for wireless spectrum. Do you think maybe that's what the ~700 million of new cash is for?


----------



## PaulS

HiDefGator said:


> I'm not sure you guys are thinking this through. If Dish bought Tivo, what would they do with them? They don't want the Tivo software. Dish already has competitive DVR software that does what they want and they wrote it. Do you really think they would dump their own software for Tivo's? Tivo's software doesn't even run on the Dish boxes today.


I don't even remotely think that Dish would buy TiVo. That said, remember that Dish is now two companies : the satellite video provider, and the "technology company" (Sling and such, for lack of a better term). You could possibly make the case that Dish could swallow up Tivo and mate that tech with the Sling stuff and make an interesting product line.


----------



## HiDefGator

PaulS said:


> I don't even remotely think that Dish would buy TiVo. That said, remember that Dish is now two companies : the satellite video provider, and the "technology company" (Sling and such, for lack of a better term). You could possibly make the case that Dish could swallow up Tivo and mate that tech with the Sling stuff and make an interesting product line.


Agreed. But I think instead of buying Tivo it would have to be merger that Tivo believed was in their best interest. If that happened Tivo could agree to the mereger with no additional value over their current share price.

As an example several years ago Symantec merged with Veritas in a 51/49 merger of equals. Veritas shareholders got zero additional value over the current trading price for their shares. But hey, we were told that it was in our best interest for long term growth.


----------



## TiVo'Brien

GoHokies! said:


> Make that $750,001,050!
> 
> http://www.theregister.co.uk/2008/05/20/dish_nds_hacking_peanuts/
> 
> Edit to add: Anyone want to speculate what Tivo would do if suddenly 750 mil dropped into their pockets?


Hopefully they'd quit spamming my TiVo's Now Playing menu.


----------



## stoneharry

herdfan said:


> What??? The market cap of 885M is what it would take in theory to buy 100% of TiVo' stock at the current price. You would get the patents in that price as you would own 100% of the company.
> 
> Currently the market does not value the patents at 2.5B, or if they do, they have deducted an extra 1.65B for other liabilities.


Patents are usually sold separately. I have seen many transactions for patent sales that did not involve buying a company. TIVO's patent portfolio is obviously worth far more than the current market cap of 885 million.


----------



## btwyx

stoneharry said:


> Patents are usually sold separately. I have seen many transactions for patent sales that did not involve buying a company.


But have you seen one where the company was bought and not the patents it held?


----------



## HiDefGator

stoneharry said:


> TIVO's patent portfolio is obviously worth far more than the current market cap of 885 million.


That might be true at the end of the month. It's not true today or Tivo's share price would be far higher than it is now.


----------



## Adam1115

Sounds like TiVo should tread lightly and not get too greedy. Doesn't make much sense to expect more from Dish than their entire company is worth...


----------



## ZeoTiVo

Adam1115 said:


> Sounds like TiVo should tread lightly and not get too greedy. Doesn't make much sense to expect more from Dish than their entire company is worth...


TiVo already tok demand for treble damages off the table on appeal and is only asking for the damages as determined by the court/jury and nothing more. the only thing TiVo is doing right now is demanding DISH abide by the court injunction and also count in the days the DVRs are still working even after the "software mod" Dish is trying to use to drag things on even further.


----------



## HiDefGator

ZeoTiVo said:


> TiVo already tok demand for treble damages off the table on appeal and is only asking for the damages as determined by the court/jury and nothing more.


If this were true I think Dish would have already settled. What Tivo wants is on going royalties for what Dish now believes are non-infringing boxes.


----------



## old7

HiDefGator said:


> If this were true I think Dish would have already settled. What Tivo wants is on going royalties for what Dish now believes are non-infringing boxes.


Small correction:

What Dish now claims are non-infringing boxes.

There is a difference.


----------



## HiDefGator

old7 said:


> Small correction:
> 
> What Dish now claims are non-infringing boxes.
> 
> There is a difference.


I think both are true. Dish believes they are non-infringing and they are claiming they are non-infringing. They may not be. We will either find out for sure shortly after the 30th or at some very distant point in the future after yet another jury trial.


----------



## ZeoTiVo

HiDefGator said:


> I think both are true. Dish believes they are non-infringing and they are claiming they are non-infringing. They may not be. We will either find out for sure shortly after the 30th or at some very distant point in the future after yet another jury trial.


look to this previous post in the thread and my snippets from the link posted. TiVo was given the "modified" source code by DISH and TiVo checked it and gave a preliminary statement that TiVo finds the code to still be infringing.

Also TiVo filed something for that May 30th meeting in which they said it does not matter what DISH did code wise as the injunction language did not allow for such an action by DISH as fulfilling the demands of the injunction.

therefore TiVo is still just asking for what the courts already said is their due from the judgement.


----------



## stoneharry

HiDefGator said:


> That might be true at the end of the month. It's not true today or Tivo's share price would be far higher than it is now.


Sorry, there is no way that is true. Your statement assumes that all stocks are always currently selling for their true value, when in reality stock prices are determined by how many shares have been bought or sold recently. To think that a mass of investors who do not even know each other could all come to the same conclusion that a stock should be bid up to the price of its its current market value plus the value of its patent portfolio and always have every stock currently selling for its exact true worth, makes no sense at all, and in fact never really happens.

For instance, years ago, some famous forecaster said Amazon stock was going to hit $200. At the time some people thought he was crazy because it was at $60. Within one week frenzied investors bought so much of it that it soared to $230. That was an obvious artificial price. The market is fickle and does not work at all the way you think it does.


----------



## stoneharry

btwyx said:


> But have you seen one where the company was bought and not the patents it held?


Probably not, but the point is that some sources say the TIVO patent portfolio of 89 patents and 109 pending the patent process is worth between 2-3 billion so anyone who would want to buy the company would have to come up with far more than the current market cap of 885 million.


----------



## stoneharry

Adam1115 said:


> Sounds like TiVo should tread lightly and not get too greedy. Doesn't make much sense to expect more from Dish than their entire company is worth...


Somewhere someone pointed out that the 750 million DISH borrowed is to pay for recent upgrades to their service, I think they said to buy new broadcasting spectrum, I do not really remember. Anyway, it does not sound like TIVO is in any danger of being bought out by DISH.


----------



## HiDefGator

ZeoTiVo said:


> look to this previous post in the thread and my snippets from the link posted. TiVo was given the "modified" source code by DISH and TiVo checked it and gave a preliminary statement that TiVo finds the code to still be infringing.
> 
> Also TiVo filed something for that May 30th meeting in which they said it does not matter what DISH did code wise as the injunction language did not allow for such an action by DISH as fulfilling the demands of the injunction.
> 
> therefore TiVo is still just asking for what the courts already said is their due from the judgement.


I don't want to start an argument that never ends, but what did you expect Tivo to say and when did they get to decide what software infringes and what doesn't?

Dish on the other hand produced three opinions from three different independent patent attorneys that all say they do not believe the new source code infringes. I suspect it will need to go before a jury of another 12 unemployed east texas jurors before we know the answer the courts will abide by. But that's just my guess.


----------



## Curtis

stoneharry said:


> Somewhere someone pointed out that the 750 million DISH borrowed is to pay for recent upgrades to their service, I think they said to buy new broadcasting spectrum, I do not really remember. Anyway, it does not sound like TIVO is in any danger of being bought out by DISH.


Dish paid for the new spectrum last month.


----------



## ZeoTiVo

HiDefGator said:


> I don't want to start an argument that never ends, but what did you expect Tivo to say and when did they get to decide what software infringes and what doesn't?
> 
> Dish on the other hand produced three opinions from three different independent patent attorneys that all say they do not believe the new source code infringes.


 bwa ha ha ha ha ha he he heeeee ROTFLMA. 
So you say TiVo would of course say it infringes (ok, point taken) then point to 3 guys DISH paid with a straight face. 



> I suspect it will need to go before a jury of another 12 unemployed east texas jurors before we know the answer the courts will abide by. But that's just my guess.


I suspect Judge Flosom will uphold his injunction, which does not allow for DISH to keep making _endless_ software mods and then saying they keep the DVRs on till someone proves otherwise.


----------



## HiDefGator

Curtis said:


> Dish paid for the new spectrum last month.


and replenished that cash this month? so they could continue spending money on more HD to catch up with Directv?


----------



## GoHokies!

HiDefGator said:


> I don't want to start an argument that never ends, but what did you expect Tivo to say and when did they get to decide what software infringes and what doesn't?
> 
> Dish on the other hand produced three opinions from three different independent patent attorneys that all say they do not believe the new source code infringes. I suspect it will need to go before a jury of another 12 unemployed east texas jurors before we know the answer the courts will abide by. But that's just my guess.


Dish's choices in lawyers so far has not reflected well on them in the past, so the fact that they could peddle their wares and find 3 people to agree with them doesn't hold much water. I'm sure that it will have to go back before a jury again, although I've got a little more faith in the legal system than your "unemployed east texas jurors" comment implies.


----------



## HiDefGator

ZeoTiVo said:


> I suspect Judge Flosom will uphold his injunction, which does not allow for DISH to keep making _endless_ software mods and then saying they keep the DVRs on till someone proves otherwise.


If you had never heard of Tivo or Dish do you think that would be fair to Dish if later they were found to be non-infringing?

Unfortunately what you describe is exactly what happens with software patents. I work for a large software company. They are constantly pushing us to file patent applications.
One of the questions they ask before filing, "can we tell if a competitor is violating this patent?" If you can't tell without looking at the competitors source they won't bother filing it. Software is just too easy to change and work around. As an engineer and former member of my companies patent committee, I consider what Dish has changed to be significant. In my opinion their workaround, if truely implemented, is not what Tivo patented. A lot of highly paid people at Dish seem to think the same thing.

Of course the judge can do whatever he wants, which Dish will undoubtly appeal again.


----------



## ZeoTiVo

HiDefGator said:


> If you had never heard of Tivo or Dish do you think that would be fair to Dish if later they were found to be non-infringing?


since DISh had been the one to be found infringing, then yes iwould think it fair and the burden should be on the offending party to show it had removed the offense versus the agreived party having to do _anything_

sure software can be done in different ways to hit the same endpoint (System engineer at large company involved in design of such things and the countless hours spent of deciding whihc approach to take )

at the end of the day though in this patent case the software is very much tied to a specific process nad that process is just as big a part of the patent as the software and it would be hard to find a different process that was still functional once the hardware and software is out in the wild..
Frankly - if I had one of these DISH DVRs I would be demanding a free replacemnet with a newer DVR versus getting some bastardized code update that is not designed around better functionality/performance

but to reiterate - DISH should have to prove it has a clean bill of health


----------



## HiDefGator

ZeoTiVo said:


> but to reiterate - DISH should have to prove it has a clean bill of health


I don't have a problem with that. I do have a problem with the judge upholding the injunction so that Dish has to settle before they have a chance to prove it.


----------



## HiDefGator

ZeoTiVo said:


> Frankly - if I had one of these DISH DVRs I would be demanding a free replacemnet with a newer DVR versus getting some bastardized code update that is not designed around better functionality/performance


Wouldn't the new DVR have the exact same code in it? The code in question is so low in the code stack that it gets executed billions of times every hour. So it probably wasn't that hard for them to convince themselves that the changes worked correctly.


----------



## ZeoTiVo

HiDefGator said:


> Wouldn't the new DVR have the exact same code in it? The code in question is so low in the code stack that it gets executed billions of times every hour. So it probably wasn't that hard for them to convince themselves that the changes worked correctly.


sure testing it is not a problem - but at the heart of it they had to change a major part of the system flow. I saw anecdotal posts about not having a live TV buffer and other things. This mod was again not about better but non-infringing.

I hd the VIP622 in mind which so far has not been specifically named in the suit and sits in that gray "colorably the same or not" place.


----------



## GoHokies!

HiDefGator said:


> I don't have a problem with that. I do have a problem with the judge upholding the injunction so that Dish has to settle before they have a chance to prove it.


How would you then propose to prevent Dish from gaming the system, and stretching things out for as long as possible by making meaningless changes to the code to keep the injunction from going into force?

An injunction from a judge has to have some teeth in it, there shouldn't be such a trivial way to skate around it and openly defy the judge as Dish has been doing.


----------



## ZeoTiVo

HiDefGator said:


> I don't have a problem with that. I do have a problem with the judge upholding the injunction so that Dish has to settle before they have a chance to prove it.


since DISH had an ABUNDANCE of time to deal with all this, already tried to have language about modding the software in the injunction that was rejected by the court and had their full legal say on appeal yet never brought it up since they wanted to save it for a much better time delay back in the lower court - I say tough for DISH. They have shown their desire to play the system rather than be a responsible corporate citizen, so now they can pay the piper.


----------



## Daven

HiDefGator said:


> Dish on the other hand produced three opinions from three different independent patent attorneys that all say they do not believe the new source code infringes.


Produced to who?

Edit: I found the reference, they went to TiVo and Tivo Said:
"The changes described in the opinion letters produced by EchoStar do not render the products
noninfringing, and TiVo has seen nothing so far in its review of source code that changes
this."


----------



## HiDefGator

GoHokies! said:


> How would you then propose to prevent Dish from gaming the system, and stretching things out for as long as possible by making meaningless changes to the code to keep the injunction from going into force?


That is a problem for the government to fix in the patent system. Just because the system may be broken for this one particular software only infringement scenario doesn't mean Tivo is entitled to special treatment.

And I believe it is a rather unrealistic scenario to worry about in the first place. What Dish has submitted this time is clearly not a meaningless change.

Even in this scenario Dish would still be required to pay infringement costs for the entire time until they took to come up with nonfringing software.


----------



## HiDefGator

Daven said:


> Produced to who?
> 
> Edit: I found the reference, they went to TiVo and Tivo Said:
> "The changes described in the opinion letters produced by EchoStar do not render the products
> noninfringing, and TiVo has seen nothing so far in its review of source code that changes
> this."


does it matter? as others have said, either side could come up with as many opinions as they wanted to pay for.


----------



## GoHokies!

HiDefGator said:


> That is a problem for the government to fix in the patent system. Just because the system may be broken for this one particular software only infringement scenario doesn't mean Tivo is entitled to special treatment.


I disagree, I think that its the patent system working as intended. In a generic case, any company should not be able to delay the legal system long enough to put the competitor that it stole the IP from out of buniness.



> And I believe it is a rather unrealistic scenario to worry about in the first place. What Dish has submitted this time is clearly not a meaningless change.
> 
> Even in this scenario Dish would still be required to pay infringement costs for the entire time until they took to come up with nonfringing software.


I think that we'll just have to agree to disagree on this point - everything Dish has done up to this point indicates that this is exactly what they are attempting to do, and you don't have to pay infringement costs to a company that you've run out of business.


----------



## HiDefGator

Daven said:


> Produced to who?
> 
> Edit: I found the reference, they went to TiVo and Tivo Said:
> "The changes described in the opinion letters produced by EchoStar do not render the products
> noninfringing, and TiVo has seen nothing so far in its review of source code that changes
> this."


exactly. and what else would you expect Tivo to say?


----------



## HiDefGator

GoHokies! said:


> In a generic case, any company should not be able to delay the legal system long enough to put the competitor that it stole the IP from out of buniness.
> 
> I think that we'll just have to agree to disagree on this point - everything Dish has done up to this point indicates that this is exactly what they are attempting to do, and you don't have to pay infringement costs to a company that you've run out of business.


If Tivo goes out of business or not, the patent system doesn't care. It is not their concern. It may be sad, but judges don't care. It isn't their job. If Tivo had run out of money a year ago do you think the court system would have rushed the case? Not a chance.

And you do still have to pay the out of business company the money. The debt collectors will be happy to take it.


----------



## Daven

HiDefGator said:


> exactly. and what else would you expect Tivo to say?


And what else would you expect Dish's paid lackys to say. In regards to this case, Dish has failed time and time again to convince judges and juries of thier innocence. They are guilty of theft. Do you expect them to tell the truth about anything?


----------



## HiDefGator

Daven said:


> They are guilty of theft.


I believe they are guilty of accidental patent infringment after trying to build a non-infringing dvr. The judge agreed when he didn't award Tivo treble damages or legal fees.

That isn't technically "theft".

Dish has every right to game the legal system as mush as the legal system allows itself to be gamed. That is a valid and legal business strategy.


----------



## ZeoTiVo

HiDefGator said:


> And I believe it is a rather unrealistic scenario to worry about in the first place. What Dish has submitted this time is clearly not a meaningless change.


it more than likely is meaningless and that has nothing to do with whetehr the software is now non infirnging or not. The injunction is to shut down the DVRs regardless of what DISH ahsdone in the meantime

And the judge did not find Dish accidently did anything - he simply did not find the treble damages to be warranted based on the case before him. The jury did indeed find that DISH willfully and deliberately infringed - nothing you post to spin any of this will change that very plain fact.


----------



## stoneharry

GoHokies! said:


> How would you then propose to prevent Dish from gaming the system, and stretching things out for as long as possible by making meaningless changes to the code to keep the injunction from going into force?
> 
> An injunction from a judge has to have some teeth in it, there shouldn't be such a trivial way to skate around it and openly defy the judge as Dish has been doing.


I think it will boil down to this. DISH will probably be able to convince some judge to issue a stay of the injunction until it can be determined whether or not the new software infringes because shuting down the DVR's would cause much damage to DISH. This issue will probably have to be sorted out in a new trial filed by TIVO.

I am anxious to see TIVO get the original judgment of money however. Any legal types here able to give a guess when the Supreme Court will decide whether to hear the appeal?


----------



## stoneharry

ZeoTiVo said:


> already tried to have language about modding the software in the injunction that was rejected by the court


I must have missed that. Could you provide something for me to read about that and explain why you say that?


----------



## bidderman9

I believe that E has filed their response. Anybody have Pacer access?


----------



## bidderman9

Echo Reply - Main Document
May 23, 2008

By Hand Delivery

The Honorable David Folsom

United States District Court for the Eastern District of Texas

Federal Building

500 North Stateline, 3rd Floor

Texarkana, TX 75501

Re: TiVo, Inc. v. EchoStar, et al. Case No. 2-04CV-Ol

Your Honor:

This letter is submitted pursuant to this Court's April 23, 2008 Order

(Docket No. 822), and in response to TiVo's letter of May 16,2008 (Docket No. 825).

Post-Verdict Events

According to the Amended Final Judgment and Permanent Injunction against

EchoStar issued on September 8, 2006, which followed the Final Judgment and Permanent

Injunction of August 17, 2006, the injunction was to take effect thirty days after it was

entered: October 9, 2006. Before it took effect, however, the injunction was provisionally

stayed by the Court of Appeals on August 18, 2006, and then stayed through the pendency of

the appeal on October 3, 2006. Despite the stay, TiVo never requested a bond, either from

the Court of Appeals or from this Court.

Page Two

On January 31, 2008, the Federal Circuit reversed the judgment against EchoStar on

TiVo's "hardware" claims (Claims 1,5,21,23,32,36, and 52 of the '389 patent), affirmed

infringement of the "software" claims (Claims 31 and 61 of the '389 patent), affirmed the

damages award, remanded the case to this Court "for any further proceeding that may be

necessary with respect to [the hardware] claims" and so that this Court "can make a

determination as to the additional damages, if any, that TiVo has sustained while the stay of

the permanent injunction has been in effect." The Court also noted that the stay of the

injunction would dissolve when the Court's opinion became final, which occurred when its

mandate issued on April 18, 2008.

On April 23, this Court issued an Order setting a status conference for May 30, 2008,

requesting letters from the parties concerning "topics of discussion for the status conference

and the relief sought." On May 16, 2008, TiVo responded that it had two agenda items: 1)

Enforcement ofthe permanent injunction, and 2) Determination of damages during the stay

of the injunction.

I. Enforcement of the Permanent Injunction

To be clear at the outset, EchoStar has gone to great lengths to comply fully with both

the letter and the spirit of the Court's injunction, and it is confident that it is in full

compliance.

Page Three

Within days ofthe original verdict on April 13, 2006, EchoStar convened a team of

engineers to investigate alternatives to the accused devices that had been found to infringe.

Fifteen engineers supported by a multitude oftest technicians and program management

personnel worked on the project, putting in approximately four man-years of effort. This

program was successful and, while the appeal was pending, EchoStar was able to replace its

existing infringing software with redesigned software based on a novel approach - an

approach that Mr. Barton and TiVo's experts had dismissed at trial as unworkable. The new

EchoStar DVRs do not rely on intelligent processing or indexing of incoming MPEG data

streams before the television programming is stored on the hard disk of a DVR, eliminating

the very feature TiVo said was "essential" to the '389 patent. EchoStar has removed the prestorage

processing by its DVRs so that incoming television program data is no longer

"parsed," as every claim of the '389 patent requires. After the data is written in full to

memory, the new EchoStar DVRs rely on statistics and probabilistic algorithms invented by

EchoStar to search for broadcast data on the fly during trick-play - a concept and technique

that cannot be found in the '389 patent. In addition, EchoStar completely eliminated flowcontrol

in the Broadcom DVRs, another element that TiVo asserted was vital to the Barton

Patent's software claims.

Page Four

After testing the new software, EchoStar submitted its new design to experienced

patent counsel at Fish & Richardson, who issued a series of opinions, signed by the

Chairman of that firm for many years, confirming that EchoStar's redesign does not infringe

the '389 patent. [See Exhibits 1 through 3 attached hereto.]

When EchoStar announced its redesign, TiVo responded by announcing publicly that

it would bring a contempt proceeding against EchoStar before it had even examined the new

software. [See Exhibit 4 attached hereto.]

In an attempt to forestall a purely tactical response by TiVo, on April 18, the day the

remand issued, EchoStar unilaterally provided TiVo with EchoStar's pending patent

application regarding its novel approach to the DVR, along with copies ofthe Fish &

Richardson opinions. When TiVo asked to examine the new software under the same

Protective Order and procedures to which the parties had agreed during the lawsuit, EchoStar

(again voluntarily) made the software available to TiVo's lawyers and its consultant. [See R.

Krevans letter of April 18,2008, attached hereto as Exhibit 5 (without opinion letters already

attached hereto as Exhibits 1-3)].

Once again, however, the result has been predictable. TiVo now seeks a finding of

"summary contempt" and, inconsistently, far-reaching, burdensome discovery to attempt to

develop a case against EchoStar's redesigned software.

Page Five

The legal standard concerning contempt motions could not be clearer. "[C]ontempt is

a shield protecting the patentee against an infringer's flagrant disregard for court orders," not

"a sword for wounding a former infringer who has made a good-faith effort to modify a

previously adjudged or admitted infringing device to remain in the marketplace." Arbek

Mfg., Inc. v. Moazzam, 55 F.3d 1567, 1570 (Fed. Cir. 1995); see also KSM Fastening Sys.,

Inc. v. HA. Jones Co., 776 Fold 1522, 1526 (Fed. Cir. 1985) (accused infringer is "entitled to

design around the claims of a patent without the threat of contempt proceedings with respect

to every modified device").

Against this background, TiVo's three claims of contempt are bound to fail:

1) TiVo's first claim, that EchoStar has failed to "disable the DVR functionality"

of its DVRs is frivolous on its face. The injunction ordered EchoStar to "disable the DVR

functionality (i.e., disable all storage to and playback from a hard disk drive of television

data) in all but 192,708 units of the Infringing Products that have been placed with an end

user or subscriber." In the context of this case, and this Court's injunction, the term

"Infringing Products" means the DVRs the jury found to infringe the claims. The software

used in those DVRs was a critical part of TiVo's infringement case, the jury's verdict, and

this Court's final judgment. In determining what constitutes an "Infringing Product,"

therefore, this Court must consider not just the DVR hardware, but also the software that is

used to control the DVR. If the software used in an EchoStar product has been changed so

Page Six

that the software claims are no longer infringed, the product is no longer an Infringing

Product.

TiVo ignores this, however, clearly taking the position that an EchoStar product that

was found to infringe only the software claims needed to have all of its DVR functionality

disabled, even if the software was subsequently changed so that the product no longer

infringes. This is nonsensical, and a totally unreasonable reading of the injunction.

Moreover, it is clear in this case that because ofthe changes EchoStar has made to the

software, the DVRs in question do not infringe any of the software claims. EchoStar DVRs

no longer index or "parse" incoming data, and thus cannot infringe. Similarly, the complete

elimination of flow-control in the Broadcom DVRs prevents those DVRs from infringing

Once again, KSM Fastening Systems is directly on point:

Nevertheless, devices which could not be enjoined as

infringements on a separate complaint cannot possibly be

deemed enjoined as infringements under an existing

injunction in contempt proceedings.

776 F.2d at 1528 (emphasis added).

2) TiVo's second claim, that "EchoStar is taking the position that it can place

new infringing DVRs on an ongoing basis, as long as the total number of infringing DVRs

does not exceed 192,708" is simply mysterious. I To be absolutely clear, EchoStar has not

I This assertion occurs out ofthe blue. Although the parties have exchanged numerous communications over

EchoStar's redesign, TiVo never mentioned this issue to EchoStar before it filed its letter with the Court.

Page Seven

placed any infringing DVR since this Court's injunction took effect, and it has absolutely no

intention of doing so.

3) Finally, TiVo challenges EchoStar's new DVR software. Again, EchoStar

has done nothing that can result in a finding of contempt. Substantial open issues concerning

whether a modified product infringes a patent cannot be tried in summary contempt

proceedings. Arbek Mfg., 55 F.3d at 1570. In fact, should TiVo pursue this complaint, once

the Court concludes that there is more than a colorable difference between the redesign and

the device originally found to infringe, the Court must terminate the contempt proceeding

immediately. [d. Only last week, the Federal Circuit made it clear that there will always be

more than a "colorable difference" unless the two products are "essentially the same."

Acumed LLC v. Stryker Corp., No. 2007-1115, __F.3d__, Slip Op. at pp. 6-7 (Fed. Cir.

May 13,2008) (copy attached hereto as Exhibit 6). Given the extensive engineering effort,

the novelty of EchoStar's new approach, and the opinions of Fish & Richardson, there is

simply no way that TiVo can allege in good faith that EchoStar's new software is

"essentially the same" as the software it accused at trial?

TiVo is well aware of how its charges of contempt must necessarily play out. Thus,

while claiming that it already can prove that the new software is no more than "colorably

different," TiVo also claims a need to reopen discovery to confirm its view. This invitation

2 If, after a proper investigation, TiVo fonns a good faith view, consistent with Rule II, that EchoStar's new

software infringes the '389 patent, TiVo's remedy is to file a new infringement action. Arbek Mfg., 55 F.3d at

1570.

Page Eight

to endless litigation should be rejected. EchoStar has already voluntarily given TiVo ample

information about its new software, including access to the code itself. There is no

justification for reopening discovery in this matter. Should the Court disagree, EchoStar

would ask, of course, that the discovery be limited and reciprocal. If TiVo intends to pursue

its contempt strategy, EchoStar needs the opportunity to defend itself.

II. Damages during the Stay

There are two approaches the Court can take on this issue:

A) Because ofthe record developed at trial, the Court already has a factual basis

that would allow it to apply the jury's royalty rate to EchoStar's post-verdict sales while the

software adjudged to infringe was in use. If the Court takes this approach, the post-verdict

damages award can probably be determined quickly by the parties and the case concluded.

B) The second approach, which TiVo urges, is again to reopen discovery, and to

schedule a mini-trial before the Court to set a post-verdict royalty rate. There are several

problems with TiVo's approach. First, it is inconsistent with the controlling case law. This

is not a proceeding such as Paice v. Toyota or Amado v. Microsoft where the district court

expressly permitted post-verdict sales of infringing devices to continue subject to a

continuing royalty. This is, instead, a routine determination of damages while an injunction

has been stayed. Increasing the royalty rate chosen by the jury would be an impermissible

additur. See Taylor v. Green, 868 F.2d 162, 165 (5th Cir. 1989) ("neither the district court

Page Nine

nor this court has the power to add to the jury's verdict"); Beck v. Koppers, Inc., No.

3:03CV60-P-D, 2006 U.S. Dist. LEXIS 51628, *11 (N.D. Miss. July 26,2006) ("a federal

court may not increase damages above those awarded by a jury either directly or by

additur"); Gourgues v. Leblanc, No. 98-1459 Section C, 1999 U.S. Dist. LEXIS 4886, at *I

(E.D. La. April 8, 1999) (it is "now well-settled in federal jurisprudence" that "increase of a

jury damages verdict by a federal court violates the Seventh Amendment right to jury trial in

civil cases") (citing Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996».

Second, the Federal Circuit mandate does not authorize this Court to retry the jury's

royalty rate; it simply gives the Court discretion to "determine damages, if any" that occurred

while the injunction was stayed.

Finally, TiVo's belief that a new royalty rate would necessarily be higher is clearly

mistaken. In the Amado case cited by TiVo, the Court of Appeals concluded that the rate

would likely be higher because "uncertainties as to infringement and validity had been

eliminated" post trial. 517 F.3d at 1362. In this case, however, unlike Amado, there were no

such uncertainties. TiVo's expert testified that his royalty rate, which was adopted by the

jury, was based on the assumption that the patent was both valid and infringed. [See

testimony ofTiVo's damages expert, Dr. Keith Ugone, on April 4, 2006, attached here as

Exhibit 7.] Thus there was no royalty rate "uncertainty" as to validity or infringement

resolved by the verdict. Compare Amado, 517 F.3d at 1362 (noting that the calculus is

markedly different when infringement and patent validity prior to judgment "is uncertain,

Page Ten

and damages are determined in the context of that uncertainty"). Indeed, the only "changed

circumstances" of any note are the reversal of the hardware infringement verdict, EchoStar's

prompt deployment of non-infringing DVR software, and TiVo's post verdict history of

licensing the '389 patent, all of which should lower, rather than enhance, the royalty rate.

If the Court nevertheless prefers to proceed as TiVo suggests, and try the post-verdict

royalty issue, a schedule affording discovery to both sides should be discussed. See Paice,

504 F.3d at 1315 (inviting development of additional evidence regarding post-judgment

royalty); id. at 1316 (parties should be given "meaningful chance to present evidence"

regarding appropriate post-judgment royalty) (Rader, J., concurring).

In its letter, TiVo also refers to its Bill of Costs. This issue is fully briefed (see

Docket Nos. 797, 807, 810, 811, 813 and 814) and is, as far as EchoStar is aware, pending

before the Clerk. TiVo has asked that costs be taxed in the amount of$333,600.03.

EchoStar has objected to $116,628.23 of that amount.

III. Additional Agenda Item

EchoStar has one item of its own to add to the Court's agenda. The injunction

exempts 192,708 units of the Infringing Products from its scope given the Court's finding of

full compensation to TiVo as to that number of set-top boxes. As such, the law implies a

license for the exempted DVRs "and frees them from the monopoly of the patent." Union

Tool Co. v. Wilson, 259 U.S. 107, 113 (1922); Amstar Corp. v. Envirotech Corp., 823 F.2d

Page Eleven

1538, 1549 (Fed. Cir. 1987) (similar). EchoStar has applied this exception, in part, to model

numbers of very low volume or which it no longer sells or manufactures for deployment.

EchoStar has not deployed its new DVR software to these models.

If a customer has a problem with one of these exempted boxes in the future, and it

needs repair, EchoStar would in the normal course of business employ its "Advance

Exchange" program: the customer contacts EchoStar to say there is a problem, EchoStar

sends a replacement box to the customer, the customer plugs in that box and sends back the

broken box to EchoStar in the packing materials from the replacement box. Under

applicable law, EchoStar is clearly entitled to repair an exempted DVR and return the

repaired DVR to its customer. See, e.g., Kendall Co. v. Progressive Med. Tech., Inc., 85

F.3d 1570, 1573 (Fed. Cir. 1996) ("The right to repair is implied as a matter oflaw"); see

also Bottom Line Mgmt., Inc. v. Pan Man, Inc., 228 F.3d 1352, 1355-56 (Fed. Cir. 2000)

("refurbishing" the patented product by cleaning it, reapplying certain coatings, and repairing

or replacing bent or broken components constitutes permissible repair); accord Stanford

Havens Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1376 (Fed. Cir. 1991) (rejecting

contention that permissible repair doctrine applies only to those who purchase from the

patentee or from one authorized to sell by the patentee, and acknowledging the doctrine also

applies to infringers who have become implied licensees by virtue of fully compensating the

patentee through damages). The question is whether EchoStar customers must go without

Page Twelve

satellite television service while the specific DVR is being repaired, or whether alternatively,

EchoStar can swap it out immediately without violating the Court's injunction.

EchoStar has temporarily halted its Advance Exchange program with respect to settop

boxes that have not received the non-infringing DVR software code in order to avoid any

risk of violating the Court's order. EchoStar sought a stipulation from TiVo that a swap

procedure would be permitted. [See Exhibit 8 hereto.] TiVo has, however, recently rejected

this resolution. [See Exhibit 9 hereto.] EchoStar therefore seeks clarification from the Court

of this issue.

Yours truly,

Harold J. McElhinny

cc: Counsel of Record

(Via E-Filing)


----------



## HiDefGator

ZeoTiVo said:


> The jury did indeed find that DISH willfully and deliberately infringed - nothing you post to spin any of this will change that very plain fact.


If the judge agreed with the jury he would have awarded Tivo legal fees at a minimum.


----------



## sbiller

Some interesting analysis here.

http://www.investorvillage.com/smbd.asp?mb=3928&pt=m

My guess is the judge is not going to look kindly at E* ignoring the injunction. Their work-around sounds plausible but it will take quite some time to determine whether it really is non-infringing.

And, at the very pro-E* forums, a E* slant on the E* reply. 
http://www.dbstalk.com/showthread.php?t=128829&page=16


----------



## Curtis

sbiller said:


> My guess is the judge is not going to look kindly at E* ignoring the injunction.


Hell hath no fury like a federal judge scorned.


----------



## MichaelK

HiDefGator said:


> I think both are true. Dish believes they are non-infringing and they are claiming they are non-infringing. They may not be. We will either find out for sure shortly after the 30th or at some very distant point in the future after yet another jury trial.


I'd say dish beleives they have a reason to claim that they are no longer infringing. Who knows if they really believe it.

Just my opinion of the scum lawyers and tactics that echostar apparently uses all the time in the courts.


----------



## MichaelK

HiDefGator said:


> I don't want to start an argument that never ends, but what did you expect Tivo to say and when did they get to decide what software infringes and what doesn't?
> 
> Dish on the other hand produced three opinions from three different independent patent attorneys that all say they do not believe the new source code infringes. I suspect it will need to go before a jury of another 12 unemployed east texas jurors before we know the answer the courts will abide by. But that's just my guess.


would those 3 new opinions be similar to their original one that said they never infringed int he first place? That were apparently of questionable validity because there were so many drafts and input from dish?

(not looking to pick afight with you but i seem to keep finding something to say about your posts-  I just think DISH is pond scum and not just becasue of this tivo thing)


----------



## MichaelK

HiDefGator said:


> If Tivo goes out of business or not, the patent system doesn't care. It is not their concern. It may be sad, but judges don't care. It isn't their job. If Tivo had run out of money a year ago do you think the court system would have rushed the case? Not a chance.
> 
> And you do still have to pay the out of business company the money. The debt collectors will be happy to take it.


actually isn't damage to the paintiff considered in the judges decisionsof how to deal with the infringement once it was determined to exist?- and that's why tivo got an injunction in the first place becasue the judge determined the potential harm to tivo outweighed the potential damage to dish?

(not a rhetorical question- looking for confirmation?)


----------



## MichaelK

HiDefGator said:


> ...
> 
> Dish has every right to game the legal system as mush as the legal system allows itself to be gamed. That is a valid and legal business strategy.


completely true.

moral and ethical are 2 different questions though.

Personally, i think moral and ethical behavior over the long hall makes a better business stategy- but LOTS of people and investors sure seem to think otherwise.


----------



## HiDefGator

MichaelK said:


> and that's why tivo got an injunction in the first place becasue the judge determined the potential harm to tivo outweighed the potential damage to dish?
> 
> (not a rhetorical question- looking for confirmation?)


I'm not an attorney. Just a software engineer.

Dish was ordered to shutdown the dvr's because a jury had found them to infringe. At that point I don't believe the judge had any reason to care what damage it caused to Dish. They were infringing so they had to go.

Maybe I don't fully understand your question.


----------



## stoneharry

MichaelK said:


> actually isn't damage to the plaintiff considered in the judges decisions of how to deal with the infringement once it was determined to exist?- and that's why tivo got an injunction in the first place because the judge determined the potential harm to tivo outweighed the potential damage to dish?


Yes and yes. The Judges language shows he was very concerned about the damage done to TIVO.


----------



## bidderman9

I just quickly scanned Exhibit 3. I was expecting a highly technical document. But to me it looked like alot more legal-ese.


----------



## BlackBetty

I just read the E* brief and I found it very laughable. What a smug bunch of SOB's. I hope Judge Folsom brings them maximum pain very soon.


----------



## TexasAg

I hate to say it (and I know I said this earlier), but I'm guessing Echo has a strong argument here. In the DVRs where only the software infringed, Dish can replace the infringing software with non-infringing software. Once that happens (and the court acknowledges it), the court CANNOT order the non-infringing DVRs shut down. There is no legal basis for continuing an injunction against non-infringing products.

Also, if Tivo really did state that certain features were "essential" or "vital" for the claimed invention in their patent, the lack of those features will hurt Tivo's case. Dish can use the lack of those features in its DVRs as proof they no longer infringe. The same goes if Tivo said something is not possible. In fact, Echo can use Tivo's statements that something is not possible as evidence that they deserve a patent on the "impossible" invention. As long as Echo can show that their software is more than colorably different than the prior infringing software, Tivo can't even get them in a contempt proceeding.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## dswallow

TexasAg said:


> I hate to say it (and I know I said this earlier), but I'm guessing Echo has a strong argument here. In the DVRs where only the software infringed, Dish can replace the infringing software with non-infringing software. Once that happens (and the court acknowledges it), the court CANNOT order the non-infringing DVRs shut down. There is no legal basis for continuing an injunction against non-infringing products.


The impression I got was that EchoStar was ordered to disable DVR functionality on the infringing models. They weren't ordered to change the software on them to somehow not do something in a particular way so they would no longer infringe. And I believe it was said that that latter possibility had been specifically brought up and dismissed in court.


----------



## sbiller

dswallow said:


> The impression I got was that EchoStar was ordered to disable DVR functionality on the infringing models. They weren't ordered to change the software on them to somehow not do something in a particular way so they would no longer infringe. And I believe it was said that that latter possibility had been specifically brought up and dismissed in court.


Agree. The scenario that I believe is most likely:

E* will be held in contempt. 
E* will be ordered to shut down the DVRs until it is proved that they are non-infringing. 
E* will eventually prove that the change results in a non-infringing DVR. They will need to strike some sort of deal with TiVo to allow the DVRs to continue to operate.

If the 2nd assertion happens, it will be interesting to see how long it takes for them to prove that they've changed the SW enough.


----------



## TexasAg

dswallow said:


> The impression I got was that EchoStar was ordered to disable DVR functionality on the infringing models. They weren't ordered to change the software on them to somehow not do something in a particular way so they would no longer infringe. And I believe it was said that that latter possibility had been specifically brought up and dismissed in court.


The court couldn't order Echo to change the software. You can't order a company to change software in a product that infringes someone else's patent. You can only order them to stop infringing. Since operating the DVRs is an infringement, the court could stop Echo from selling, offering for sale, using, etc. an infringing DVR. That's what the court did.

But if Echo's DVRs are modified so that they no longer infringe, the court cannot continue to order the disabling of the DVR functionality. If it tries, it is reversible on appeal (and it's not a close issue, either).

The court cases Echo cites are correct. Echo is free to design around Tivo's patents (particularly in light of how the appeals court interpreted Tivo's claims in a narrower manner than Tivo wanted). Tivo cannot use contempt proceedings as a way to litigate whether the new software infringes if there are colorable differences between the old and new software.

Echo does and will have to pay Tivo the damages it owes. Echo does and will have to continue not using the old software that infringes Tivo's patents. Echo can design new software and use it unless and until Echo is ordered to stop doing it because it infringes Tivo's patents.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## TexasAg

sbiller said:


> E* will be held in contempt.
> E* will be ordered to shut down the DVRs until it is proved that they are non-infringing.
> E* will eventually prove that the change results in a non-infringing DVR. They will need to strike some sort of deal with TiVo to allow the DVRs to continue to operate.


If Echo shows the new software is more than colorably different, they can't be held in contempt - a more than colorably different product cannot be used in a contempt proceeding. This is particularly true if Echo's software omits what Tivo admitted was an "essential" or "vital" feature. In that case, Tivo made Echo's case pretty easy.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## snickerrrrs

I mean for all the money they are going to have to pay Tivo won't they make an agreement to update all existing Dish dvrs and all future (2 year commitment for example) dvrs to Tivos? Or will it be Dish Network: a Tivo company.


----------



## dswallow

TexasAg said:


> The court couldn't order Echo to change the software. You can't order a company to change software in a product that infringes someone else's patent. You can only order them to stop infringing. Since operating the DVRs is an infringement, the court could stop Echo from selling, offering for sale, using, etc. an infringing DVR. That's what the court did.


It's really simple if you read the order yourself.

http://www.zatznotfunny.com/2006-08/tivo-wins-permanent-injunction-against-echostar-and-cash/

The court ordered EchoStar to shut down DVR functionality (recording to or playing back from the hard disk) on specific models. Period. They didn't order them to stop infringing. They ordered them to shut down certain functionality on those models.

EchoStar is not complying. Intentionally.

They must comply or they're in contempt.

It's really simple.

Now after they comply, they can seek to be permitted to reactivate DVR functionality on those models with different software -- but that's going to be an entirely different proceeding and has nothing to do with this court order.


----------



## TexasAg

dswallow said:


> It's really simple if you read the order yourself.


I read the order a long time ago, and back then I said that the court can't order specific models shut down if the software is changed so that it no longer infringes. The court could order DVRs that infringe the hardware claims shut down since there is no way to change the hardware. The court can order "infringing DVRs" that use patented software shut down, but the court can't apply that order to DVRs updated with non-infringing software. To the extent the court tries to find Echo in contempt after more than colorably different software is installed on the DVRs, it is reversible error.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## dswallow

TexasAg said:


> I read the order a long time ago, and back then I said that the court can't order specific models shut down if the software is changed so that it no longer infringes. The court could order DVRs that infringe the hardware claims shut down since there is no way to change the hardware. The court can order "infringing DVRs" that use patented software shut down, but the court can't apply that order to DVRs updated with colorably different software. To the extent the court tries to find Echo in contempt after colorably different software is installed on the DVRs, it is reversible error.


The court has ordered it. And appeals EchoStar have made have been denied. It's currently a pending court order in which EchoStar is just refusing to comply with, and they're now arguing with the court concerning whether they can ignore that part of the order. This is past the time to argue that point.

This is going to be fun.


----------



## TexasAg

dswallow said:


> The court has ordered it. And appeals EchoStar have made have been denied. It's currently a pending court order in which EchoStar is just refusing to comply with, and they're now arguing with the court concerning whether they can ignore that part of the order. This is past the time to argue that point.


The only way Echo gets in trouble is during a contempt proceeding. The court cannot use "more than colorably different" software as the basis for a contempt proceeding. Therefore they are not "past the time" to argue that.



dswallow said:


> This is going to be fun.


As long as Echo going to court and saying "our software does not perform functions Tivo admits are 'essential'" is fun, have at it!
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Adam1115

TexasAg said:


> The only way Echo gets in trouble is during a contempt proceeding. The court cannot use "colorably different" software as the basis for a contempt proceeding. Therefore they are not "past the time" to argue that.




I thought that when there is a court order, that's it. "You are ordered to shut down all DVR's because of the infringing software" "We're not going to, but we'll stop infringing..." ?

When a guy beats his wife and they order him to stay away from her, he can't just ignore it and say he's not going to do it anymore.

He has to stop doing it, then go back to court and ask the order to be lifted.


----------



## TexasAg

Adam1115 said:


> I thought that when there is a court order, that's it. "You are ordered to shut down all DVR's because of the infringing software" "We're not going to, but we'll stop infringing..." ?
> 
> When a guy beats his wife and they order him to stay away from her, he can't just ignore it and say he's not going to do it anymore.
> 
> He has to stop doing it, then go back to court and ask the order to be lifted.


Echo appears to be taking the position that the phrase "infringing products" can't include products modified with its new software, so the order doesn't apply to the modified boxes. In that sense, they are taking the position that they aren't violating the injunction. In patent law, they are allowed to design around Tivo's patents, so the court really can't apply the order to DVRs modified with non-infringing software.

My feeling is that Echo will go to court and say their DVRs have more than colorably different software, which they can probably show (as long as the software is not substantially identical). At that point, the court cannot use the new software as the basis in a contempt proceeding.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## SCSIRAID

TexasAg said:


> Echo appears to be taking the position that the phrase "infringing products" can't include products modified with its new software, so the order doesn't apply to the modified boxes. In that sense, they are taking the position that they aren't violating the injunction. In patent law, they are allowed to design around Tivo's patents, so the court really can't apply the order to DVRs modified with non-infringing software.
> 
> My feeling is that Echo will go to court and say their DVRs have colorably different software, which they can probably show (as long as the software is not substantially identical). At that point, the court cannot use the new software as the basis in a contempt proceeding.


But just because Echo says they are no longer 'infringing' doesnt make it so. Until that is done to the courts satisfaction, it would seem that the order has to be obeyed. Shut 'em down.


----------



## nrc

TexasAg said:


> The only way Echo gets in trouble is during a contempt proceeding. The court cannot use "colorably different" software as the basis for a contempt proceeding. Therefore they are not "past the time" to argue that.


But the point of the injunction was to protect TiVo from further damage by the infringing devices. The court didn't define "Infringing Devices" as "devices you think are infringing," it defined it as a specific list of devices.

The question is how an injunction is lifted. Is it lifted when the court orders it or is it lifted when the enjoined party feels like it no longer applies? IANAL but it seems like the latter scenario would be ripe for abuse. Especially if you agree, as E* argues, that TiVo's only relief should be to start patent infringement proceedings all over from scratch. That would seem to be a torturous process to put a patent holder through. How many small patent holders could afford to successfully defend their patents in this scenario of endless litigation?


----------



## old7

TexasAg said:


> Echo appears to be taking the position that the phrase "infringing products" can't include products modified with its new software, so the order doesn't apply to the modified boxes. In that sense, they are taking the position that they aren't violating the injunction.


Dish Network can take that position if they want, it is highly unlikely that the court will see it that way. Usually when something is found to be infringing they don't just take someone's word on it that it no longer infringes.



TexasAg said:


> In patent law, they are allowed to design around Tivo's patents, so the court really can't apply the order to DVRs modified with non-infringing software.


In patent law they are allowed to design around the patents, but their design was found to be infringing. Remember Dish Network originally stated that they didn't infringe upon TiVo's patents. They can still design around the patents, but the existing products will be considered to be infringing until it has been determined that they no longer infringe, by the court. A self-serving proclamation by Dish Network doesn't count.



TexasAg said:


> My feeling is that Echo will go to court and say their DVRs have colorably different software, which they can probably show (as long as the software is not substantially identical). At that point, the court cannot use the new software as the basis in a contempt proceeding.


I have a feeling that Dish Network will go to court and say that their DVRs have colorably different software and the judge will tell them that can be determined at a later time, right now the question is about compliance with the injunction. As it stands Dish Network is not in compliance with the injunction, no matter what they claim or want to believe.


----------



## TexasAg

SCSIRAID said:


> But just because Echo says they are no longer 'infringing' doesnt make it so. Until that is done to the courts satisfaction, it would seem that the order has to be obeyed. Shut 'em down.


Echo only has to show that their new software is "more than colorably different" than the old software. At that point, there can be no finding of contempt based on Echo using the new software.



nrc said:


> But the point of the injunction was to protect TiVo from further damage by the infringing devices. The court didn't define "Infringing Devices" as "devices you think are infringing," it defined it as a specific list of devices.


Those devices only infringed Tivo's "software" claims. If Echo replaces the software on the devices with more than colorably different software, the court can no longer order them shut down under the injunction.



nrc said:


> Especially if you agree, as E* argues, that TiVo's only relief should be to start patent infringement proceedings all over from scratch. That would seem to be a torturous process to put a patent holder through. How many small patent holders could afford to successfully defend their patents in this scenario of endless litigation?


Welcome to patent law. One of the cases Echo cites actually says that contempt proceedings are available only with devices admitted or adjudged to be infringing and to those devices that are not more than colorably different or that clearly infringe. Replacing the software on Echo's DVRs changes the devices (since it was the software that infringed previously). Tivo will need to show that the software is not more than colorably different or that it still clearly infringes in order to show that a finding of contempt is appropriate.



old7 said:


> In patent law they are allowed to design around the patents, but their design was found to be infringing. Remember Dish Network originally stated that they didn't infringe upon TiVo's patents. They can still design around the patents, but the existing products will be considered to be infringing until it has been determined that they no longer infringe, by the court. A self-serving proclamation by Dish Network doesn't count.
> 
> I have a feeling that Dish Network will go to court and say that their DVRs have colorably different software and the judge will tell them that can be determined at a later time, right now the question is about compliance with the injunction. As it stands Dish Network is not in compliance with the injunction, no matter what they claim or want to believe.


Wrong. A contempt proceeding is needed in order for the court to decide whether Echo violated the injunction and to find Echo in contempt. At that proceeding, Echo can show that their software is more than colorably different than its previous software. The court cannot hold Echo in contempt if it finds the software is more than colorably different since it is the software on Echo's DVRs that infringed.

Let me be as clear as possible: When it comes to Tivo's software claims, it doesn't matter that the same hardware is being used by Echo. The issue is whether the new software on those boxes is "more than colorably different" than the old software. In order to find Echo in contempt, the judge MUST hold a contempt hearing, and the judge MUST determine whether the new software is more than colorably different. If it is, the judge CANNOT find Echo in contempt. In fact, the judge shouldn't even decide whether the new software infringes since that would require a separate infringement trial. If Echo can show that the new software is more than colorably different from the old software, that's the end of it. A new infringement trial would be needed for the new software.

Oh, and none of this will happen on May 30. Tivo can raise the issue then, but a contempt hearing won't occur on May 30.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## sbiller

TexasAg said:


> Oh, and none of this will happen on May 30. Tivo can raise the issue then, but a contempt hearing won't occur on May 30.


So what exactly will happen on May 30?


----------



## TexasAg

sbiller said:


> So what exactly will happen on May 30?


Everyone will raise the issues they want to discuss. Tivo may raise the contempt issue, at which point they'll schedule a hearing.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> Echo only has to show that their new software is "colorably different" than the old software. At that point, there can be no finding of contempt based on Echo using the new software.


Wrong, the issue of colorably different will not come up at a contempt hearing. The only issue will be if Dish Network is in compliance with the injunction. The May 30th hearing will not be a contempt hearing but one should be scheduled shortly after that.



TexasAg said:


> Those devices only infringed Tivo's "software" claims. If Echo replaces the software on the devices with colorably different software, the court can no longer order them shut down under the injunction.


The existing infringing products will be considered to be infringing until it has been determined that they no longer infringe, by the court, and the issue of colorably different will not be decided before the contempt hearing.



TexasAg said:


> Welcome to patent law. One of the cases Echo cites actually says that contempt proceedings are available only with devices admitted or adjudged to be infringing and to those devices that are not colorably different or that clearly infringe. Replacing the software on Echo's DVRs changes the devices (since it was the software that infringed previously). Tivo will need to show that the software is not colorably different or that it still clearly infringes in order to show that a finding of contempt is appropriate.


The existing infringing products will be considered to be infringing until it has been determined that they no longer infringe, by the court. There is no way around this issue for Dish Network, the software was found to be infringing and it is now up to Dish Network to prove that it is now colorably different. Again, the issue of colorably different will not be decided before the contempt hearing.



TexasAg said:


> Wrong. A contempt proceeding is needed in order for the court to decide whether Echo violated the injunction and to find Echo in contempt. At that proceeding, Echo can show that their software is colorably different than its previous software. The court cannot hold Echo in contempt if it finds the software is colorably different since it is the software on Echo's DVRs that infringed.


I agree, contempt is needed to find Dish Network in violation of the injunction and therefore in contempt. WRONG, the issue of colorably different is not relevant to the contempt hearing. It will be relevant later to decide if the new devices are infringing. The infringing devices were found to be infringing on TiVo's patents.



TexasAg said:


> Let me be as clear as possible: When it comes to Tivo's software claims, it doesn't matter that the same hardware is being used by Echo.


Correct, it doesn't matter that the same hardware is being used.



TexasAg said:


> The issue is whether the new software on those boxes is "colorably different" than the old software. In order to find Echo in contempt, the judge MUST hold a contempt hearing, and the judge MUST determine whether the new software is colorably different. If it is, the judge CANNOT find Echo in contempt.


NO. In the contempt hearing the only relevant issue is has Dish Network complied with the injunction. There are no other issues for the contempt hearing. The issue of colorably different is not relevant to the contempt hearing.



TexasAg said:


> In fact, the judge shouldn't even decide whether the new software infringes since that would require a separate infringement trial. If Echo can show that the new software is colorably different from the old software, that's the end of it. A new infringement trial would be needed for the new software.


Finally you understand, the issue of the new software is not relevant to the contempt hearing.



TexasAg said:


> Oh, and none of this will happen on May 30. Tivo can raise the issue then, but a contempt hearing won't occur on May 30.


I agree entirely. A contempt hearing should be scheduled shortly after the May 30th hearing.


----------



## samo

Here is a layman question to the attorneys between us.
Dish deployed brand new software on non-infringing hardware. What kind of fair court or legal system could order them to stop using it just because software previously deployed on these boxes was infringing? One would think that this kind of decision should require another trial that will give TiVo and Dish an opportunity to present their arguments just like they did originally.
Another question is for TiVo shareholder here. Why are you so anxious to see Dish fined for contempt? Even if court slaps Dish with contempt fine, TiVo will not see a dime of these money - it will go to government anyhow. If anything, it will make it clear that TiVo will never get licensing deal with Dish and that Dish will pay fine rather than extortion money. Since monetary award and potential licensing deal are already factored in a TiVo stock price, TiVo stock will tank on this kind of news.


----------



## sbiller

TexasAg said:


> Everyone will raise the issues they want to discuss. Tivo may raise the contempt issue, at which point they'll schedule a hearing.


After re-reading the E* response, May 30th is a status conference. Agenda requested by TiVo on May 16, 2008 included two items:1) Enforcement of the permanent injunction, and 2) Determination of damages during the stay of the injunction. E* added third agenda item related to the 192,708 units exempted.

So based on my reading of your comments in this thread, related to agenda item 1 you believe that the Judge *will not *be able to enforce the permanent injunction because they've loaded new non-infringing software on the infringing units. We haven't really discussed damages during the stay but I assume that TiVo will be paid some amount based on a reliable record related to the date the non-infringing SW was loaded on the units. You believe a new trial will be required to determine whether the new software still infringes on any of the TiVo claims.

Does this summarize your perspective on the issue?


----------



## nrc

samo said:


> Here is a layman question to the attorneys between us.
> Dish deployed brand new software on non-infringing hardware.


The hardware has not been found to be non-infringing. The higher court set aside the finding that it was infringing based on the precise language of the patent, but left any decision on whether it is infringing based on the doctrine of equivalents to the original court.

It's interesting that TiVo didn't make mention of that in their filing. If they could get a ruling that the hardware infringes based on the doctrine of equivalents it would render the question of non-infringing software downloads moot.

The fact that they appear to not even opened that line of discussion suggests that they think they have a much more direct means of getting the injunction enforced.


----------



## TexasAg

old7 said:


> Wrong, the issue of colorably different will not come up at a contempt hearing. The only issue will be if Dish Network is in compliance with the injunction.


Incorrect. The "more than colorably different" standard is the one used to determine whether Echo can be held in contempt. That is the standard used in patent contempt proceedings. If Echo is still using the same product (same software) found to be infringing, Echo can be held in contempt. If Echo is using software that is not more than colorably different than that found to infringe, Echo can be held in contempt. If Echo is using more than colorably different software, Echo cannot be held in contempt. End of story. That is the standard used in patent infringement contempt proceedings.

I came across this case when looking up something for this thread. It is a relevant quote from the Federal Circuit (the court that hears patent appeals):

_The question is presented as to how a patentee should be allowed to proceed when following a successful infringement suit the infringer modifies the infringing structure and continues as before. Allowing the patentee to proceed by a summary contempt proceeding in all cases would unnecessarily deter parties from marketing new devices that are legitimately outside the scope of the patent in question. On the other hand, to require in each instance the patentee to institute a new infringement suit diminishes the significance of the patent and the order of the court holding the patent to be valid and infringed. Obviously there must be a dividing point between those cases which should be handled by a summary contempt proceeding and those cases which should be more fully viewed in an infringement proceeding. Courts have uniformly held that the standard to be applied in determining the dividing point is whether the alleged offending device is "merely 'colorably' different from the enjoined device or from the patent._



sbiller said:


> So based on my reading of your comments in this thread, related to agenda item 1 you believe that the Judge *will not *be able to enforce the permanent injunction because they've loaded new non-infringing software on the infringing units. We haven't really discussed damages during the stay but I assume that TiVo will be paid some amount based on a reliable record related to the date the non-infringing SW was loaded on the units. You believe a new trial will be required to determine whether the new software still infringes on any of the TiVo claims.
> 
> Does this summarize your perspective on the issue?


I think Echo probably has a good shot of showing they loaded more than colorably different software onto their boxes. Based on comments here, Tivo's witnesses and/or lawyers might have made that easier by acknowledging that certain features were essential to the operation of their invention. In any event, contempt proceedings cannot be used to determine infringement of more than colorably different software, so I don't expect the judge to find Echo in contempt.



nrc said:


> The hardware has not been found to be non-infringing. The higher court set aside the finding that it was infringing based on the precise language of the patent, but left any decision on whether it is infringing based on the doctrine of equivalents to the original court.
> 
> It's interesting that TiVo didn't make mention of that in their filing. If they could get a ruling that the hardware infringes based on the doctrine of equivalents it would render the question of non-infringing software downloads moot.
> 
> The fact that they appear to not even opened that line of discussion suggests that they think they have a much more direct means of getting the injunction enforced.


Tivo's hardware claims were interpreted more narrowly by the appeals court, which meant Echo did not infringe those claims literally. The appeals court left open the possibility of infringement under the doctrine of equivalents, but that would require a new infringement trial. Finding infringement under the doctrine of equivalents almost always requires a jury trial - it is a very highly factual inquiry. It depends on whether and to what extent Tivo amended the claims in their patent application. I think it's much tougher for Tivo now that the appeals court interpreted the claims more narrowly than Tivo wanted.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Adam1115

samo said:


> Here is a layman question to the attorneys between us.
> Dish deployed brand new software on non-infringing hardware. What kind of fair court or legal system could order them to stop using it just because software previously deployed on these boxes was infringing? One would think that this kind of decision should require another trial that will give TiVo and Dish an opportunity to present their arguments just like they did originally.
> Another question is for TiVo shareholder here. Why are you so anxious to see Dish fined for contempt? Even if court slaps Dish with contempt fine, TiVo will not see a dime of these money - it will go to government anyhow. If anything, it will make it clear that TiVo will never get licensing deal with Dish and that Dish will pay fine rather than extortion money. Since monetary award and potential licensing deal are already factored in a TiVo stock price, TiVo stock will tank on this kind of news.


Well, they *could* have stopped infringing on the patents *before* it went to trial...


----------



## BlackBetty

samo said:


> Another question is for TiVo shareholder here. Why are you so anxious to see Dish fined for contempt? Even if court slaps Dish with contempt fine, TiVo will not see a dime of these money - it will go to government anyhow. If anything, it will make it clear that TiVo will never get licensing deal with Dish and that Dish will pay fine rather than extortion money. Since monetary award and potential licensing deal are already factored in a TiVo stock price, TiVo stock will tank on this kind of news.


I couldn't disagree with you more. Folsom has the ability to make Dish feel some very serious pain...could go as far as jail time for the executives. A finding of contempt would be very very strong for TiVo. Its a pay now or else message from the courts.


----------



## old7

TexasAg said:


> Incorrect. The "colorably different" standard is the one used to determine whether Echo can be held in contempt. That is the standard used in patent contempt proceedings.





TexasAg said:


> In any event, contempt proceedings cannot be used to determine infringement of colorably different software, so I don't expect the judge to find Echo in contempt.


So which way is it?

You sit there and argue back and forth and yet in the same post you can't even keep to the same story. I'd say you are more than a little confused.


----------



## old7

TexasAg said:


> I came across this case when looking up something for this thread. It is a relevant quote from the Federal Circuit (the court that hears patent appeals):
> 
> _The question is presented as to how a patentee should be allowed to proceed when following a successful infringement suit the infringer modifies the infringing structure and continues as before. Allowing the patentee to proceed by a summary contempt proceeding in all cases would unnecessarily deter parties from marketing new devices that are legitimately outside the scope of the patent in question. On the other hand, to require in each instance the patentee to institute a new infringement suit diminishes the significance of the patent and the order of the court holding the patent to be valid and infringed. Obviously there must be a dividing point between those cases which should be handled by a summary contempt proceeding and those cases which should be more fully viewed in an infringement proceeding. Courts have uniformly held that the standard to be applied in determining the dividing point is whether the alleged offending device is "merely 'colorably' different from the enjoined device or from the patent._


This is for a summary contempt proceeding where the infringer is seeking to introduce NEW devices that might fall outside of the scope of the patent in question. Not for a contempt hearing for failure to follow an injunction as court ordered.

At some point TiVo and Dish Network will be involved in a summary contempt proceeding to determine if the new hardware and software are colorably different. This has nothing to do with the fact that Dish Network is in violation of the injunction as it stands.

You are trying to put the cart before the horse.


----------



## TexasAg

old7 said:


> This is for a summary contempt proceeding where the infringer is seeking to introduce NEW devices that might fall outside of the scope of the patent in question. Not for a contempt hearing for failure to follow an injunction as court ordered.
> 
> At some point TiVo and Dish Network will be involved in a summary contempt proceeding to determine if the new hardware and software are colorably different. This has nothing to do with the fact that Dish Network is in violation of the injunction as it stands.
> 
> You are trying to put the cart before the horse.


Guess what? The Echo DVRs with new software ARE new devices. The software is what infringed, and the software has been replaced. That makes it a "new" device when it comes to Tivo's software claims.

And what exactly do you think a contempt proceeding is? It is the proceeding to determine whether to hold someone in contempt for violating an injunction.

The facts here are simple - in order to find Echo in contempt, the court needs to have a contempt proceeding. During that proceeding, if Echo can show the software on its DVRs is more than colorably different, the contempt proceeding must end. There can be no finding of contempt if the software is more than colorably different.



old7 said:


> So which way is it?
> 
> You sit there and argue back and forth and yet in the same post you can't even keep to the same story. I'd say you are more than a little confused.


You are confused - more to the point, you are confusing contempt proceedings with infringement proceedings. There can be no finding of contempt for more than colorably different software. There can also be no finding of infringement for more than colorably different software in a contempt proceeding. See, they are 2 different things - contempt of the existing injuncton and infringement for new more than colorably different software.

Contempt of the existing injunction cannot be found if the new software is more than colorably different. That is the law - you may dislike it, but that's the law in patent contempt proceedings.

Also, the judge shouldn't even consider whether the new software might infringe Tivo's patents in a contempt proceeding if the new software is more than colorably different. More than colorably different software means there needs to be a new infringement trial before infringement can be found for the more than colorably different software. The only issue the judge needs to consider in considering contempt is whether the new software is more than colorably different. If it is not, the judge can find Echo in contempt. If it is, that's the end of the contempt proceeding. Tivo would then be forced to start a new infringement proceeding if it believes the new software infringes.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## acvthree

I'm not a lawyer, so this may be a dumb question but since the injunction was already argued in court, does this apply?

***

W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad because &#8220;collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available&#8221; (citing United States v. Ryan, 402 U.S. 530, 532 n.4 (1971))).


----------



## TexasAg

acvthree said:


> I'm not a lawyer, so this may be a dumb question but since the injunction was already argued in court, does this apply?
> 
> ***
> 
> W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad because "collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available" (citing United States v. Ryan, 402 U.S. 530, 532 n.4 (1971))).


The standard is different in patent proceedings. The quote I provided above explains the need for a line allowing infringers to design around a patent after a finding of infringement. Under the patent laws, if your new product is more than colorably different from the old one, you can still be sued for infringement, but you cannot be held in contempt.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## jmoak

Here we are, years later.

Tivo won, yet Dishnetwork has born no consequence other than payments to lawyers.

They continue to sell and operate their dvr's without interruption.

Four years and five months later and nothing has changed.

The court seems to either have no power or desire to stop them.


There is one thing I've learned from watching this go on and on and on and on....

Money trumps Justice.


I hope I'm proven wrong, but if history is any indication, .....


----------



## BlackBetty

jmoak said:


> Here we are, years later.
> 
> Tivo won, yet Dishnetwork has born no consequence other than payments to lawyers.
> 
> They continue to sell and operate their dvr's without interruption.
> 
> Four years and five months later and nothing has changed.
> 
> The court seems to either have no power or desire to stop them.
> 
> There is one thing I've learned from watching this go on and on and on and on....
> 
> Money trumps Justice.
> 
> I hope I'm proven wrong, but if history is any indication, .....


If nothing major goes in TiVo's favor on May 30th, or very soon thereafter, I will lose what little faith I have in the judicial system.


----------



## HiDefGator

jmoak said:


> There is one thing I've learned from watching this go on and on and on and on....
> 
> Money trumps Justice.


Not old enough to remember the OJ trial I guess.


----------



## HiDefGator

BlackBetty said:


> If nothing major goes in TiVo's favor on May 30th, or very soon thereafter, I will lose what little faith I have in the judicial system.


If I may ask, what were you hoping for?

Dish made infringing DVR's. 
They were ordered to pay Tivo less than $100 million to compensate Tivo for ALL of Tivo's suffering and damages to that date. 
The judge felt the crime didn't even merit awarding Tivo legal fees.
Never was Tivo promised or awarded a requirement for long term licensing or subscribers from Dish. Which appears to be what everyone was drooling over.
Dish has every right to modify the infringing product and make it noninfringing if they can. 
They have clearly tried and they fully deserve the chance to prove they have done it without being forced into a lifetime contract with Tivo first.
Did you really have no faith in America's engineers to come up with a viable workaround? It's just software.


----------



## ZeoTiVo

TexasAg said:


> The court couldn't order Echo to change the software. You can't order a company to change software in a product that infringes someone else's patent. You can only order them to stop infringing. Since operating the DVRs is an infringement, the court could stop Echo from selling, offering for sale, using, etc. an infringing DVR. That's what the court did.
> 
> But if Echo's DVRs are modified so that they no longer infringe, the court cannot continue to order the disabling of the DVR functionality. If it tries, it is reversible on appeal (and it's not a close issue, either).


 but how is it legally determined the new software no longer infringes. Sure we can both read the reply by echostar and agree that no longer parsing the data as it is recorded to the hard drive would take away a big part of the infringement but that does not mean the software is just as the reply says and also does not take into account any other infringement.
So for Echostar to wave some experts around and say they can continue something that the court said caused significant harm just seems weak on the face of it. Seems like Echo would have to continue doing what they are, which is defy the injunction and fight any legal rulings with counter suits.

to me that just takes any teeth out of the Judge's rulings and makes for a compelling business case to do the unethical thing and infirnge at first and then ride it out. To me this just further shows the weakness of our juducial system in which the party judged to have done wrong neer faces any real consequences. Instead of fairness I always lean toward the party found to have done wrong lose some of their rights and should be made to have to prove they are no longer doing that wrong thing versus others having to prove otherwise.

So yes, looks like Echo has found the wiggle room to skate by and puts the decison on TiVo as to whether they want to spend more money to keep going after echo or just settle up for the money they can get now and move on. .... sucks

The court cases Echo cites are correct. Echo is free to design around Tivo's patents (particularly in light of how the appeals court interpreted Tivo's claims in a narrower manner than Tivo wanted). Tivo cannot use contempt proceedings as a way to litigate whether the new software infringes if there are colorable differences between the old and new software.

Echo does and will have to pay Tivo the damages it owes. Echo does and will have to continue not using the old software that infringes Tivo's patents. Echo can design new software and use it unless and until Echo is ordered to stop doing it because it infringes Tivo's patents.[/QUOTE]


----------



## TexasAg

ZeoTiVo said:


> but how is it legally determined the new software no longer infringes.


During a new infringement trial. More than colorably different software means it no longer falls under the current injunction and cannot form the basis for contempt. It instead must be litigated during another infringement trial.

Echo would also owe damages from the time the new software was used if the new software infringes. And it is entirely possible that the second time around that triple damages could be imposed.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## HiDefGator

TexasAg said:


> During a new infringement trial. Colorably different software means it no longer falls under the current injunction and cannot form the basis for contempt. It instead must be litigated during another infringement trial.
> 
> Echo would also owe damages from the time the new software was used if the new software infringes. And it is entirely possible that the second time around that triple damages could be imposed.


And I assume they could find the hardware infringes again under DOE during the new trial.


----------



## jmoak

HiDefGator said:


> Not old enough to remember the OJ trial I guess.


Ah, yes. Silly me.

Oh, well. Nevermind.

Upon reading my post afterwards, I'm afraid that it may be taken as a snide remark toward HiDefGator.
No offense intended, HiDefGator.
I know it's not the first time money's bested justice, but this one's a little closer than the OJ debacle was.


----------



## HiDefGator

jmoak said:


> Ah, yes. Silly me.
> 
> Oh, well. Nevermind.
> 
> Upon reading my post afterwards, I'm afraid that it may be taken as a snide remark toward HiDefGator.
> No offense intended, HiDefGator.
> I know it's not the first time money's bested justice, but this one's a little closer than the OJ debacle was.


I have really thick skin. No offense taken.


----------



## bidderman9

TexasAg said:


> During a new infringement trial. Colorably different software means it no longer falls under the current injunction and cannot form the basis for contempt. It instead must be litigated during another infringement trial.
> 
> Echo would also owe damages from the time the new software was used if the new software infringes. And it is entirely possible that the second time around that triple damages could be imposed.


At this point isn't it just an assumption that it is "colorably different" until it is proven in a court of law? Therefore until it is proven aren't they failing to abide the injunction? Since Echo* was found guilty, doesn't the burden of proof shift to them to prove that they are no longer in violation of the injunction? If so, shouldn't they be required to abide by the injuction till they can prove that their software is "colorably different"


----------



## sbiller

bidderman9 said:


> At this point isn't it just an assumption that it is "colorably different" until it is proven in a court of law? Therefore until it is proven aren't they failing to abide the injunction? Since Echo* was found guilty, doesn't the burden of proof shift to them to prove that they are no longer in violation of the injunction? If so, shouldn't they be required to abide by the injuction till they can prove that their software is "colorably different"


Isn't that the purpose of the contempt hearing that will likely be set following the May 30th status meeting? Echo* will need to call witnesses that say their SW is colorably different and TiVo will counter that its not. The Judge will need to decide. If he decides its colarably different, than TiVo will need to go back to court on the hardware infringement issues and to prove infringement of the new SW. If the judge decides its not, he'll throw the book at E*.

The next few weeks should be really interesting. Clearly there isn't a lot of precedence in the area of SW infringement and SW work-arounds and this case may establish a lot of precedence for patent law going forward. The area I continue to struggle with from a layman's point of view is who has the burden of proof. The RIM / NTP case would have been great for precedence if it would have come to a legal conclusion rather than the settlement.


----------



## Curtis

sbiller said:


> Isn't that the purpose of the contempt hearing that will likely be set following the May 30th status meeting?


TiVo has said that their contempt motion will only cover the fact that Dish has not complied with the injunction. Dish has not shut down the named DVRs. The subject of the new software would be off topic.

TiVo may file a contempt motion later on for the newer models.


----------



## ZeoTiVo

Curtis said:


> TiVo has said that their contempt motion will only cover the fact that Dish has not complied with the injunction. Dish has not shut down the named DVRs. The subject of the new software would be off topic.
> 
> TiVo may file a contempt motion later on for the newer models.


seems from the reply that DISH is trying to make the new software the main topic of meeting.

I forsee DISH continuing to keep the DVRs going and dropping this first in Judge Folsom's lap to see if he will take the firm line on the injunction and keep on the path that just putting in new software alone is not enough without a hearing to determine the software does indeed make the DVR non-infringing.
If the Judge does not have the stomach to be the one to turn off many consumer DVRs then it goes back to TiVo to spend the resources to keep coming after DISH.

My slant on all this is the judge will renew some of my belief in a "Justice" system if he takes the hard line on DISH and decree they had plenty of time to work things out directly with TiVo and enough is enough on DISH playing the system and the injunction says shut down the DVRs until DISH proves otherwsie or works out a deal with TiVo.


----------



## BobCamp1

ZeoTiVo said:


> The jury did indeed find that DISH willfully and deliberately infringed - nothing you post to spin any of this will change that very plain fact.


That jury was dumb. They found Dish guilty of literal infringement AND doctrine of equivalents. That's not possible for the same claim in the same patent. I'm surprised Judge Fossom didn't throw it out. It caught the Appeals Court off guard.

Anyway, Judge Fossom threw out the willful and deliberate infringement ruling, which is what judges do when the jury does something really dumb. Which they do all the time. Especially in this district. Which is why Tivo chose it.

I think HiDefGator is correct, and I think Judge Fossom agrees with us. Dish tried to work around the patent. They thought they had. They didn't. This isn't exactly black-and-white. You can find an expert opinion one way or the other. Remember they were arguing over what the word "a" meant.

Dish's problem is, can they implement new software that works around the claim using the existing hardware? Normally it is easy to work-around a software patent. But they have very specialized hardware in there. And will the judge buy that it's different? And will the judge even care?

Also remember that every single decision Judge Fossom makes from here on can be appealed.


----------



## Curtis

BobCamp1 said:


> That jury was dumb. They found Dish guilty of literal infringement AND doctrine of equivalents. That's not possible for the same claim in the same patent. I'm surprised Judge Fossom didn't throw it out. It caught the Appeals Court off guard.


The judge's name is "Folsom". The jury found differnt things for different models. Judge Folsom was fine with that and so was the appeals court.


> _Appeals court: "At the conclusion of the trial, the jury found that the 50X DVRs literally infringed the asserted hardware and software claims. The jury found that the Broadcom DVRs literally infringed the asserted hardware claims and infringed the asserted software claims under the doctrine of equivalents."_





BobCamp1 said:


> Anyway, Judge Fossom threw out the willful and deliberate infringement ruling, which is what judges do when the jury does something really dumb. Which they do all the time. Especially in this district. Which is why Tivo chose it.


Judge Folsom didn't touch the jury's willful infringement verdict. Neither did the appeals court. Stop making stuff up.


----------



## Greg Bimson

TexasAg said:


> The facts here are simple - in order to find Echo in contempt, the court needs to have a contempt proceeding. During that proceeding, if Echo can show the software on its DVRs is colorably different, the contempt proceeding must end. There can be no finding of contempt if the software is colorably different.


The facts aren't as clear cut as you'd like them to be...


> *Each Defendant*, its officers, agents, servants employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, *are hereby restrained and enjoined*, pursuant to 35 U.S.C. 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing into the United States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and *from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.*


Read the bold parts together, as one sentence.

If DISH/SATS is still infringing with their new software, it does not require a new trial. The injunction states DISH/SATS can no longer infringe. So if a ViP622 has software that infringes, it will then be subject to this injunction, even if it is colorably different.


----------



## TexasAg

Curtis said:


> TiVo has said that their contempt motion will only cover the fact that Dish has not complied with the injunction. Dish has not shut down the named DVRs. The subject of the new software would be off topic.
> 
> TiVo may file a contempt motion later on for the newer models.


Echo is saying they have downloaded more than colorably different software into its DVRs. Since it was the software that infringed in these DVRs, replacing the software is something Echo is allowed to do. The court cannot prevent Echo from putting more than colorably different (and possibly non-infringing) software on its DVRs.

If Tivo wishes for the court to find Echo in contempt of the injunction, Tivo will likely file a motion on May 30. The court must then hold a contempt hearing to determine if Echo is in fact violating the injunction. During the contempt hearing, if Echo shows that they downloaded more than colorably different software into the DVRs, the contempt hearing ends without a finding of contempt. End of story. That is the legal standard applied in contempt proceedings during patent infringement litigation.

This is what I expect to happen, Tivo to claim Echo is not complying with the injunction, a contempt hearing is scheduled, and Echo provides evidence that the new software is more than colorably different and Tivo disagrees. Since the burden for showing that something is more than colorably different is not extraordinarily difficult, I would expect no contempt finding.

Therefore, the new software is not "off topic". It is Echo's defense (and a very strong legal defense) to any claim that it is violating the injunction. All Echo has to do is show the software is more than colorably different, and any contempt proceeding is over.



ZeoTiVo said:


> seems from the reply that DISH is trying to make the new software the main topic of meeting.


As it should, given that the presence of more than colorably different software would prevent a finding of contempt.



Greg Bimson said:


> If DISH/SATS is still infringing with their new software, it does not require a new trial. The injunction states DISH/SATS can no longer infringe. So if a ViP622 has software that infringes, it will then be subject to this injunction, even if it is colorably different.


Incorrect. The law is the law, and I quoted the relevant case earlier. Echo is allowed to design around Tivo's patent without being hauled into a contempt proceeding and cited for contempt for each and every design-around attempt. If Echo can show that its software is more than colorably different, there can be no finding of contempt.

The judge in the contempt proceeding shouldn't even be trying to determine whether the new software infringes, since that is not the legal standard. The legal standard is more than colorably different software. If the software is more than colorably different, Tivo would be required to file a new infringement action against the new software and convince a judge/jury that the new software infringes.



ZeoTiVo said:


> My slant on all this is the judge will renew some of my belief in a "Justice" system if he takes the hard line on DISH and decree they had plenty of time to work things out directly with TiVo and enough is enough on DISH playing the system and the injunction says shut down the DVRs until DISH proves otherwsie or works out a deal with TiVo.


I'd prepare to be disappointed. Echo is within its rights to download more than colorably different software into its DVRs and not be found in contempt. Imagine if it was Tivo sued for infringement and ordered to shut down all of its DVRs. Tivo develops software it believes designs around the patent it violated. The software is more than colorably different. Would you be willing to say Tivo should go ahead and shut down its DVRs, even though the legal standard applied to Tivo would not require it?

Keep in mind, folks - this is not my legal standard or my interpretation of the legal standard. The legal standard (more than colorably different) is well-defined in patent law, and it is the standard that the judge must use in any contempt proceeding (at least, if the judge doesn't want to get slapped down on appeal).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> Incorrect. The law is the law, and I quoted the relevant case earlier. Echo is allowed to design around Tivo's patent without being hauled into a contempt proceeding and cited for contempt for each and every design-around attempt


The "relevant case" is not relevant. The injunction order states that DISH/SATS can no longer infringe on the software claims of the Time Warp patent. If at any time DISH/SATS is infringing, they can be hauled into contempt proceedings to prove they are no longer infringing.


TexasAg said:


> The judge in the contempt proceeding shouldn't even be trying to determine whether the new software infringes, since that is not the legal standard.


What? I just showed where it is in the injunction order. DISH/SATS, as per the terms of the injunction order, is no longer allowed to infringe. Therefore, it TiVo feels that DISH/SATS is infringing, TiVo simply requests a contempt hearing because DISH/SATS is violating the injunction order, which states DISH/SATS is no longer allowed to infringe.

As the argument I've made on another board, colorably different is not the only issue at play:


> Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products.


Colorably different is not in the order to disable DVR functionality. Even DISH/SATS doesn't make that argument. Their specious argument is that because the order is based upon a verdict where the old software infringes, and the new software does not infringe, they aren't subject to it. And that is wholly incorrect.


----------



## Curtis

TexasAg said:


> Echo is saying they have downloaded colorably different software into its DVRs. Since it was the software that infringed in these DVRs, replacing the software is something Echo is allowed to do. The court cannot prevent Echo from putting colorably different (and possibly non-infringing) software on its DVRs.


The injunction requires that the hard drives stop recording TV data. As long as the new software doesn't record TV data to the hard drive they will be in compliance with the injunction. The injunction doesn't allow any other options.


----------



## Greg Bimson

jacmyoung said:


> During the contempt hearing, if Echo shows that they downloaded colorably different software into the DVRs, the contempt hearing ends without a finding of contempt. End of story.


Incorrect. The only requested contempt hearing by TiVo focuses on the continuing placement of "Infringing Products", and the availability of DVR functionality in "Infringing Products", both of which are forbidden by the injunction order. DISH/SATS will not get to argue their new software, because the software has nothing to do with those two points, and because TiVo has not had enough time to counter view what DISH/SATS has been working on and implementing for over a year and a half.


----------



## TexasAg

Greg Bimson said:


> Incorrect. The only requested contempt hearing by TiVo focuses on the continuing placement of "Infringing Products", and the availability of DVR functionality in "Infringing Products", both of which are forbidden by the injunction order. DISH/SATS will not get to argue their new software, because the software has nothing to do with those two points, and because TiVo has not had enough time to counter view what DISH/SATS has been working on and implementing for over a year and a half.


Why is this difficult? More than colorably different software ends the contempt proceeding - it is the software in those Echo DVRs that infringed, so replacing the existing software with more than colorably different software means no contempt. I've cited the case setting up what Echo can and can't do - identical software or non-more than colorably different software = contempt, more than colorably different software = no contempt.

And if the judge doesn't think Tivo has had enough time, the judge can grant Tivo some time for more discovery and prep before the contempt proceeding.

The court cannot prevent Echo from downloading more than colorably different software into its DVRs and continuing to use the DVRs. It was the software that infringed. Replacing the software with more than colorably different software means Echo can continue using them.

It doesn't matter if the injunction doesn't say "Echo can download more than colorably different software". The standard for determining whether Echo can be held in contempt for its different software is whether the software is more than colorably different.

It also doesn't matter that Echo is using the same hardware (model XYZ), even if model XYZ is covered by the injunction. It was the software, not the hardware, that Tivo won on for those DVRs. If Echo replaces the software, the court must decide if the software is more than colorably different. If it agrees the software is more than colorably different, no contempt.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> It doesn't matter if the injunction doesn't say "Echo can download colorably different software". The standard for determining whether Echo can be held in contempt for its different software is whether the software is colorably different.


The question won't even come up. TiVo won't be filing for contempt on anything other than Dish not doing what the injunction says to do.


----------



## Greg Bimson

jacmyoung said:


> Why is this difficult? Colorably different software ends the contempt proceeding - it is the software in those Echo DVRs that infringed, so replacing the existing software with colorably different software means no contempt.


Because you appear not to know what "contempt" means. Contempt of the Court is simply a judge finding a party ignoring the orders given. The injunction order against DISH/SATS has more than one "order". And if TiVo believes any of those orders are not being followed, TiVo can ask for a contempt hearing, on each of the orders that are not being followed.

TiVo has asked for hearing to determine if DISH/SATS is in contempt for failing to "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber." Colorably different does not come into play here.

TiVo has asked for a hearing to determine if DISH/SATS is in contempt for failing to stop "making, using, offering to sell, selling, or importing into the United States, the Infringing Products." Colorably different has no play here, either.

If TiVo was to go after the ViP 622 and 722, then the colorably different aspect comes into play as those receivers are not "Infringing Products". However, at this time, TiVo is simply going after the "Infringing Products", where colorably different doesn't matter.


----------



## TexasAg

Curtis said:


> The question won't even come up. TiVo won't be filing for contempt on anything other than Dish not doing what the injunction says to do.





Greg Bimson said:


> Because you appear not to know what "contempt" means. Contempt of the Court is simply a judge finding a party ignoring the orders given. The injunction order against DISH/SATS has more than one "order". And if TiVo believes any of those orders are not being followed, TiVo can ask for a contempt hearing, on each of the orders that are not being followed.
> 
> TiVo has asked for hearing to determine if DISH/SATS is in contempt for failing to "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber." Colorably different does not come into play here.
> 
> TiVo has asked for a hearing to determine if DISH/SATS is in contempt for failing to stop "making, using, offering to sell, selling, or importing into the United States, the Infringing Products." Colorably different has no play here, either.
> 
> If TiVo was to go after the ViP 622 and 722, then the colorably different aspect comes into play as those receivers are not "Infringing Products". However, at this time, TiVo is simply going after the "Infringing Products", where colorably different doesn't matter.


You both have chosen to ignore the proper legal standard - that's your choice. I can only tell you what the legal standard is, I can't make you understand or believe it. The standard in patent contempt proceedings when an infringer has deployed a new product (in this case, new software) is more than colorably different.

Echo's software was found to infringe in its DVRs. If Echo deploys new software, it doesn't matter that the software is hosted on the same (non-infringing) hardware. The court can't order the non-infringing hardware shut down without first deciding if the new software is more than colorably different than the infringing software. And yes, until there is a verdict of infringement, the hardware cannot be considered infringing.

Unless, of course, you feel that the non-infringing hardware can be shut down regardless of the software on that hardware. Which, I am guessing, is what some folks around here are hoping for. Sorry, but you'll likely be disappointed in the end.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

jacmyoung said:


> You both have chosen to ignore the proper legal standard - that's your choice. I can only tell you what the legal standard is, I can't make you understand or believe it. The standard in patent contempt proceedings when an infringer has deployed a new product (in this case, new software) is colorably different.


And this would be the argument provided for that legal standard:


> The question is presented as to how a patentee should be allowed to proceed when following a successful infringement suit the infringer modifies the infringing structure and continues as before.


Although on face value this appears to work in this case, this mentions nothing about the currently enjoined devices, also known as "Infringing Products". This is for a new product. Not a modified product.

Again, TiVo is not going after "colorably different" products, only the products defined as "Infringing Products". DISH/SATS can try all they want to make the judge understand they've updated the "Infringing Products", but they are still "Infringing Products", with updates.


----------



## Curtis

TexasAg said:


> You both have chosen to ignore the proper legal standard - that's your choice. I can only tell you what the legal standard is, I can't make you understand or believe it. The standard in patent contempt proceedings when an infringer has deployed a new product (in this case, new software) is colorably different.


The case law you have in mind was in cases where the plaintiff wanted to expand the scope of the injunction to add new devices. TiVo is not doing that. TiVo wants the injunction enforced on the enjoined devices.


----------



## TexasAg

Greg Bimson said:


> This is for a new product. Not a modified product.


That's really great legal reasoning. "Your honor, it's not new, it's just modified, which makes it technically different software, but it isn't new."

What exactly do you think the new software is? The old software is what infringed in those DVRs, not the hardware. So if the software is new, it is a "new product."

If Tivo was found to infringe a software patent and ordered to shut down all of its DVRs, then Tivo downloaded new more than colorably different software, would you just say "Oh well, Tivo just modified its product, it didn't develop a new one, so I guess I need to live without my Tivos"?



Curtis said:


> The case law you have in mind was in cases where the plaintiff wanted to expand the scope of the injunction to add new devices. TiVo is not doing that. TiVo wants the injunction enforced on the enjoined devices.


And what you don't seem to understand is that it was the software, not the hardware, that infringed. You can't find Echo in contempt (and order non-infringing hardware shut down) unless:

(i) the exact same software is being used as was found to infringe (which is not the case); or
(ii) non-more than colorably different software is being used.

It doesn't matter that the same hardware is being used - no finding has been made that Echo's hardware in those DVRs infringed. It was just the software.

Any attempt to shut down non-infringing hardware (regardless of the software currently on it) is overbroad and easily reversible on appeal.

EDIT: Oh, and no, the case I cited is not limited to just expanding an injunction to cover new devices. It specifically deals with an infringer modifying its product: _The question is presented as to how a patentee should be allowed to proceed when following a successful infringement suit the infringer modifies the infringing structure and continues as before. _ So there is no distinction between "new" and "modified" products.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## kido

the injunction only mentions model numbers not software versions. echostar is just trying to convince the judge who wrote this injunction that when he said "infringing products" he really meant "non-infringing dvrs with infringing software that can be updated to non-infringing software, so really nothing."


----------



## Greg Bimson

> If Tivo was found to infringe a software patent and ordered to shut down all of its DVRs, then Tivo downloaded new colorably different software, would you just say "Oh well, Tivo just modified its product, it didn't develop a new one, so I guess I need to live without my Tivos"?


Yes. Precisely. Because if the court ordered a shut down of certain devices, that is exactly what should be done. There is no discussion of modifications to the device, simply an order to shut down.


----------



## Greg Bimson

jacmyoung said:


> And what you don't seem to understand is that it was the software, not the hardware, that infringed. You can't find Echo in contempt (and order non-infringing hardware shut down) unless:
> 
> (i) the exact same software is being used as was found to infringe (which is not the case); or
> (ii) non-colorably different software is being used.
> 
> It doesn't matter that the same hardware is being used - no finding has been made that Echo's hardware in those DVRs infringed. It was just the software.


What you don't comprehend is that there is an order stating all "Infringing Products", except for 192,708 of them, must have their DVR functionality removed. And the legal definition of an "Infringing Product" as per the injunction order is the DP-501, DP-508, DP-510, DP-625, DP-721, DP-921 and DP-942. Modified software in this discussion is moot.


----------



## TexasAg

Greg Bimson said:


> What you don't comprehend is that there is an order stating all "Infringing Products", except for 192,708 of them, must have their DVR functionality removed. And the legal definition of an "Infringing Product" as per the injunction order is the DP-501, DP-508, DP-510, DP-625, DP-721, DP-921 and DP-942. Modified software in this discussion is moot.





kido said:


> the injunction only mentions model numbers not software versions. echostar is just trying to convince the judge who wrote this injunction that when he said "infringing products" he really meant "non-infringing dvrs with infringing software that can be updated to non-infringing software, so really nothing."


Do you honestly believe a valid injunction could order Echo to turn off its DVRs, regardless of what software is on the DVRs, when only the software infringed?



Greg Bimson said:


> Yes. Precisely. Because if the court ordered a shut down of certain devices, that is exactly what should be done. There is no discussion of modifications to the device, simply an order to shut down.


But that's not the way patent law works. The standard is more than coloarably different. The courts cannot order non-infringing hardware shut down regardless of the software on it (if only the software infringed).

You're starting to see the harm to Tivo in the loss of the hardware claims on appeal. Echo can change the software to more than colorably different/non-infringing software much more easily than it can replace every hardware box with new hardware.



Greg Bimson said:


> Modified software in this discussion is moot.


Just don't post whines about how you've lost faith in the justice system when the contempt hearing goes something like this:

Echo: Judge, we modified the software. It's more than colorably different from what was found to infringe.
Judge: So what?
Echo: Only the software infringed. You can't order the hardware shut down since we've changed the software.
Judge: So, what's the standard?
Echo: Here's the controlling Federal Circuit decision. When we modify our software, if it's more than colorably different, you must end the contempt proceeding.
Tivo: Your honor, we disagree. You ordered the hardware shut down.
Judge: But only the software infringed. 
Tivo: Err, yeah, but you ordered the software shut down.
Judge: Contempt is not appropriate when more than colorably different software has been downloaded to replace infringing software.

Greg et al.: I just lost faith in the judicial system. How dare they follow established law and precedent!
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Martin Tupper

TexasAg said:


> You both have chosen to ignore the proper legal standard - that's your choice. I can only tell you what the legal standard is, I can't make you understand or believe it. The standard in patent contempt proceedings when an infringer has deployed a new product (in this case, new software) is colorably different.


Except the software isn't the product. It is a component of the product. According to the injunction, the infringing products are the: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942. The so re-writing the software does not make it a new product. Nor does it automatically exempt it from the injunction. Those eight models are "guilty until proven innocent". Dish will need to demonstrate that the software is colorably different in order to keep them running

However, Dish's newer DVR's, not listed above, should be exempt from the injunction by the software change. These models are innocent until proven guilty. TiVo would have to demonstrate that the software on the newer DVR's isn't colorably different than the infringing software.



TexasAg said:


> Echo's software was found to infringe in its DVRs. If Echo deploys new software, it doesn't matter that the software is hosted on the same (non-infringing) hardware.


Actually, the DVR's were found to infringe because key components (the software they were running on) were found to be infringing on TiVo's patents.



TexasAg said:


> The court can't order the non-infringing hardware shut down without first deciding if the new software is colorably different than the infringing software. And yes, until there is a verdict of infringement, the hardware cannot be considered infringing.


They can if Dish never actually requests that the injunction be lifted, based on the deployment of "colorably different" software. Dish didn't request any such re-evaluation of their work-around. They simply ignored the injunction. They very likely will be found in contempt of the injunction and their request to stay the injunction pending re-evaluation of their work around may very likely be turned down.



TexasAg said:


> Unless, of course, you feel that the non-infringing hardware can be shut down regardless of the software on that hardware. Which, I am guessing, is what some folks around here are hoping for. Sorry, but you'll likely be disappointed in the end.


Regardless of whether it is the hardware or software (or both), it doesn't matter. The eight models of DVR listed above are the "infringing products". They must be disabled, unless and until the injunction is lifted. Since the injunction has not been lifted, Dish is currently in contempt of the injunction.


----------



## rainwater

TexasAg said:


> Do you honestly believe a valid injunction could order Echo to turn off its DVRs, regardless of what software is on the DVRs, when only the software infringed?


I believe the boxes were not ordered to shut down, only the DVR functionality. So technically, the boxes can still exist, but any DVR functionality has to be removed.


----------



## TexasAg

rainwater said:


> I believe the boxes were not ordered to shut down, only the DVR functionality. So technically, the boxes can still exist, but any DVR functionality has to be removed.


Doesn't matter. If the software implementing the DVR functionality has changed and is more than colorably different than the old software, there can be no contempt for Echo's use of the new software.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> And what you don't seem to understand is that it was the software, not the hardware, that infringed. You can't find Echo in contempt (and order non-infringing hardware shut down) unless:


The injunction doesn't say anything about software. It just says to stop recording TV signals on the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


----------



## TexasAg

Curtis said:


> The injunction doesn't say anything about software. It just says to stop recording TV signals on the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942.


Listen guys, I've said my piece. In order to find that Echo violated the injunction, the court must decide if the product currently being used is "colorably different" than what was found to infringe. The model numbers for the hardware don't matter since the actual hardware components never infringed. It was the software in those models that infringed. If the new software downloaded to those model is more than colorably different, the court can't find Echo in contempt.

You can disagree, just don't be surprised when no contempt citation is issued by the trial judge and/or upheld on appeal.

EDIT: As was pointed out, one correction - Echo needs to show that its new software is "more than colorably different," not just "colorably different." In any case, if Echo can show that, there can be no contempt.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

BlackBetty said:


> http://www1.investorvillage.com/smbd.asp?mb=3928&mn=26653&pt=msg&mid=4793899


What would TiVo legal team do 
Bold added by me

this one shows TiVo does not think the software so different anyhow


> B. TOPICS OF DISCUSSION
> 1. Enforcement of the Permanent Injunction
> Although the injunction required EchoStar to "disable the DVR functionality," with
> respect to the Infringing Products, EchoStar has refused to do so. Despite the plain language
> of the injunction, EchoStar argues that it need not disable the DVR functionality because it
> has modified its software so that it supposedly no longer infringes TiVo's patent. *On May
> 12, 2008, EchoStar made its modified source code available for review by TiVo*. EchoStar
> also waived privilege and produced to TiVo three opinions of counsel relating to EchoStar's
> modified software. After review of the software that EchoStar provided and the opinion
> letters, *TiVo does not believe that the modifications avoid infringement. In fact, TiVo
> believes that EchoStar is violating the Court's injunction in at least three different ways.*


this quote speaks to TiVo believing and ready to argue in the meeting that modding the software does not change the contempt of the injunction anyhow since the court already rejected such a move in the injunction language adopted


> In opposing EchoStar's language, TiVo warned that EchoStar's formulation would be a recipe for abuse:
> This clever formulation is an invitation for EchoStar to engage in mischief.
> Such an injunction would only result in EchoStar providing what it deemed
> as "non-infringing" DVR software to its already-found-to-be-infringing
> DVRs, *creating the opportunity for interminable disputes to determine what
> exactly is "infringing DVR software."*
> (TiVo's (1) Reply Re Motion for Entry of Judgment and Permanent Injunction and (2)
> Opposition to EchoStar's Cross-Motion to Stay Injunction, Docket No. 747, at 11). *This
> Court rejected EchoStar's proposal and adopted, instead, the straightforward "disable the
> DVR functionality" provision that appears in the Permanent Injunction.*If EchoStar believed that the "disable the DVR functionality" provision of the
> injunction was inappropriate, EchoStar could have challenged it, but - despite multiple
> opportunities before both this Court and the Federal Circuit - it chose not to do so.


this backs up TexasAG position on colorably different but what others are saying in their postings is what TiVo said above as its point 1 - this is just cover if point 1 does not fly with the judge.
However it makes me ask - what do they mean by colorably different in this specific ruling? Is it that the software still does basically the same task - Eg is a DVR? Or is it that the design and flow are very different approach to that same functionality? or can it just be somewhat different - instead of indexing and storing that index with the data - it parses along somewhat the same lines on playback?


> Regarding the modified software, the court need only
> compare it to the original infringing product. Unless there is "more than a colorable
> difference" between the two, a contempt proceeding is appropriate. KSM Fastening Sys.,
> Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985). Then, so long as the modified
> software "falls within the . . . adjudicated scope of the [patent] claims," EchoStar is in
> contempt of court. KSM Fastening, 776 F.2d at 1530





> Respectfully submitted,
> Morgan Chu
> Counsel for Plaintiff TiVo Inc.


----------



## Greg Bimson

TexasAg said:


> Do you honestly believe a valid injunction could order Echo to turn off its DVRs, regardless of what software is on the DVRs, when only the software infringed?


OF COURSE. The injunction states a specific instruction that must be completed by DISH/SATS. If the injunction is in error, it should have been addressed along with the appeal. Because it was not address and has gone into full force and effect, the injunction stands as written. That is, disable the DVR functionality in all but 192,708 units of "Infringing Products". No more, no less, as that is exactly what the order states.


TexasAg said:


> Just don't post whines about how you've lost faith in the justice system when the contempt hearing goes something like this:
> 
> Echo: Judge, we modified the software. It's colorably different from what was found to infringe.
> Judge: So what?
> Echo: Only the software infringed. You can't order the hardware shut down since we've changed the software.
> Judge: So, what's the standard?
> Echo: Here's the controlling Federal Circuit decision. When we modify our software, if it's colorably different, you must end the contempt proceeding.
> Tivo: Your honor, we disagree. You ordered the hardware shut down.
> Judge: But only the software infringed.
> Tivo: Err, yeah, but you ordered the software shut down.


You've got this backwards:

Echo: Judge, we modified the software. It's colorably different from what was found to infringe.
Judge: TiVo?
TiVo: That doesn't matter. Your order, your Honor, states to shut down DVR functionality in all but 192,708 units of "Infringing Products". New software is not an issue here.
DISH/SATS: But, but, but, we've loaded new software...
TiVo: That is for another argument. This argument is because you did not follow the injunction order written by the judge.
Judge: Absolutely correct. DISH/SATS, you are now in contempt of this court.

You've placed entirely too much emphasis on what you believe is "case law". It is as far from applicable as possible, as TiVo is not trying to get any "colorably different" device enjoined; only the "Infringing Products".


----------



## TexasAg

Greg Bimson said:


> You've placed entirely too much emphasis on what you believe is "case law". It is as far from applicable as possible, as TiVo is not trying to get any "colorably different" device enjoined; only the "Infringing Products".


Let me ask you this. If Echo downloads non-infringing software onto its DVRs, are those DVRs "infringing products" simply because the model numbers are the same?



ZeoTiVo said:


> However it makes me ask - what do they mean by colorably different in this specific ruling? Is it that the software still does basically the same task - Eg is a DVR? Or is it that the design and flow are very different approach to that same functionality? or can it just be somewhat different - instead of indexing and storing that index with the data - it parses along somewhat the same lines on playback?


Echo is obviously saying it needs to nearly identical, which is likely too narrow. The judge will likely look at how the software operates and compare the functions of the old and new software. If the new software performs different functions to reach the same result or if its functions work in a different way, you'll likely see the judge say it is more than colorably different.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

From ZeoTiVo's argument


> Regarding the modified software, the court need only compare it to the original infringing product. Unless there is "more than a colorable difference" between the two, a contempt proceeding is appropriate. KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985). Then, so long as the modified software "falls within the . . . adjudicated scope of the [patent] claims," EchoStar is in contempt of court. KSM Fastening, 776 F.2d at 1530


I think this is TiVo setting a trap. New software does not equate to more than a colorable difference, especially if the new software does the same thing as the old software and still manages to infringe.

But even that doesn't matter. DISH/SATS could be facing heavy fines for not shutting down the "Infringing Products". The further the discussion of "colorably different" software drags out, the more fines there will be for ignoring an order to shut down functionality of "Infringing Products".


----------



## Greg Bimson

TexasAg said:


> Let me ask you this. If Echo downloads non-infringing software onto its DVRs, are those DVRs "infringing products" simply because the model numbers are the same?


Whoa, Nellie. Big if...

"Infringing Products" has one meaning. It doesn't matter if the "Infringing Products" are no longer "infringing products".


----------



## Martin Tupper

TexasAg said:


> Do you honestly believe a valid injunction could order Echo to turn off its DVRs, regardless of what software is on the DVRs, when only the software infringed?


Not regardless of the software. The injunction on those eight models could be lifted if the software is found by the court to be colorably different. But unless and until that happens, Echostar must shut-down those boxes.



TexasAg said:


> But that's not the way patent law works. The standard is coloarably different. The courts cannot order non-infringing hardware shut down regardless of the software on it (if only the software infringed).


Again, the software is not the infringing product. The DVR's are. The hardware and software are just components of the infringing products. At present, the court does not consider the DP-501 of today colorably different than the DP-501 named in the injunction (nor were they asked to re-evaluate the DP-501 before the injunction went into effect). The injuction on the DP-501 still remains in effect and Echostar is presently defying that injunction.



TexasAg said:


> You're starting to see the harm to Tivo in the loss of the hardware claims on appeal. Echo can change the software to colorably different/non-infringing software much more easily than it can replace every hardware box with new hardware.


That is true. However, new software does not automatically mean that the DVR's are no longer infringing. Echostar must _first _obtain a ruling stating that their new software is colorably different.



TexasAg said:


> Just don't post whines about how you've lost faith in the justice system when the contempt hearing goes something like this:
> 
> Echo: Judge, we modified the software. It's colorably different from what was found to infringe.
> Judge: So what?
> Echo: Only the software infringed. You can't order the hardware shut down since we've changed the software.
> Judge: So, what's the standard?
> Echo: Here's the controlling Federal Circuit decision. When we modify our software, if it's colorably different, you must end the contempt proceeding.
> Tivo: Your honor, we disagree. You ordered the hardware shut down.
> Judge: But only the software infringed.
> Tivo: Err, yeah, but you ordered the software shut down.


How about this one:
Echo: Judge, we modified the software. It's colorably different from what was found to infringe.
Judge: So what?
Echo: Only the software infringed. You can't order the hardware shut down since we've changed the software.
Judge: So, what's the standard?
Echo: Here's the controlling Federal Circuit decision. When we modify our software, if it's colorably different, you must end the contempt proceeding.
Tivo: The new software isn't colorably different.
Judge: But Echostar says it is. 
Tivo: It isn't.
Judge: OK, let's schedule a hearing in 90 days.
Echo: We request that the injunction be lifted pending the outcome of the hearing.
Judge: _____________________

Fill in the blank. (My guess is that the judge says "No".)


----------



## ZeoTiVo

TexasAg said:


> Let me ask you this. If Echo downloads non-infringing software onto its DVRs, are those DVRs "infringing products" simply because the model numbers are the same?


We get your point - you do not have to keep on with just the point - 
what about the parts I quoted from TiVo's reply to the meeting? TiVo is going to exactly argue the injunction stands despite modded software and that the court rejected any modding software bypass in the language of the injunction specifically proposed by Echo, rejected and then never brought up on the appeall.

Sure TiVo may loose the argument but the TiVo lawyers have done well enough up to now and are betting more ath nsome forum posts points on it so I am going with what the TiVo legal team would do.


----------



## Martin Tupper

TexasAg said:


> Listen guys, I've said my piece. In order to find that Echo violated the injunction, the court must decide if the product currently being used is [more than] "colorably different" than what was found to infringe.


No, that is the requirement to _lift _the injunction. The requirement to find that Echostar violated the injunction is simply to determine whether Echostar failed to disable DVR functionality on the "infringing products".


----------



## TexasAg

Greg Bimson said:


> Whoa, Nellie. Big if...
> 
> "Infringing Products" has one meaning. It doesn't matter if the "Infringing Products" are no longer "infringing products".


Sooooo close.

Guess what? You can't order non-infringing products shut down, even if they once infringed. And even if you did order it, you can't punish someone for not shutting down non-infringing products.



Martin Tupper said:


> Judge: _____________________
> 
> Fill in the blank. (My guess is that the judge says "No".)


My guess is yes. We'll see on Friday!
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

ZeoTiVo said:


> However it makes me ask - what do they mean by colorably different in this specific ruling? Is it that the software still does basically the same task - Eg is a DVR? Or is it that the design and flow are very different approach to that same functionality? or can it just be somewhat different - instead of indexing and storing that index with the data - it parses along somewhat the same lines on playback?


Colorably different in the context of the infringed claims.

The infringed claims say nothing about indexing or a media switch. Dish makes a big deal out of those differences in the new software. It just doesn't matter.


----------



## kido

echostar does not get to decide what "infringing products" means, the judge does and he defined it as certain dvr models. the injunction was not written in a vacuum. both tivo and echostar had input on what they thought the injunction should cover and if echostar had wanted a software update relief clause they should have asked for it long before now. the injunction only allows for one type of software update, the kind that disabled dvr functionality. all other relief was denied.


----------



## Curtis

TexasAg said:


> Guess what? You can't order non-infringing products shut down, even if they once infringed. And even if you did order it, you can't punish someone for not shutting down non-infringing products.


Ever heard of a preliminary injunction? The presumption is that there is infringement until proven otherwise.


----------



## Martin Tupper

TexasAg said:


> Let me ask you this. If Echo downloads non-infringing software onto its DVRs, are those DVRs "infringing products" simply because the model numbers are the same?


If by "non-infringing" you mean new software that has been found by the court to be non-infringing, then NO. The models listed in the injunction would no longer be considered "infringing products"

If by "non-infringing" you mean new software that has not been ruled upon, then YES. The models listed in the injunction would still be considered "infringing products".


----------



## Greg Bimson

TexasAG said:


> Guess what? You can't order non-infringing products shut down, even if they once infringed. And even if you did order it, you can't punish someone for not shutting down non-infringing products.


So much so that you are staking your reputation on it, while I am that the opposite will happen.

In most infringement cases the _threat of an injunction order in full force and effect_ causes a settlement. In this case, there are some that believe that injunction order is very easy to ignore, explain away or work around. We shall see...


----------



## ZeoTiVo

kido said:


> if echostar had wanted a software update relief clause they should have asked for it long before now.


they did ask for a clause like that to keep their options open and it was denied. They did not appeal the language of the injunction.

Add to that the injunction was indeed placed against *infringing* products that have not been through any legal proceeding to change that status of *infringing* and the Judge has all he needs to open contempt proceedings as TiVo requests.

Now DISh has the ace in the hole of being the only ones who can shut down the DVRs. The Judge nor anyone else can not use other means to shut them down legally. Would DISH hold off a shutdown and enter into the contempt hearings. past actions say they may well do something like that.


----------



## TexasAg

Curtis said:


> Ever heard of a preliminary injunction? The presumption is that there is infringement until proven otherwise.


Huh? Do you know what the standard is for a preliminary injunction in a patent case? Here they are: (1) the likelihood of the patentee's success on the merits; (2) irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties; and (4) the public interest. Likelihood of success means the patent in question is likely valid and the accused infringer likely infringes. That is very different from what we are talking about (the claim that "infringing product" includes "products that were but are no longer infringing" in the context of a permanent injunction).



Greg Bimson said:


> So much so that you are staking your reputation on it, while I am that the opposite will happen.
> 
> In most infringement cases the _threat of an injunction order in full force and effect_ causes a settlement. In this case, there are some that believe that injunction order is very easy to ignore, explain away or work around. We shall see...


We'll see what happens on Friday and (if necessary) on appeal. I will say I was just looking around and came across a thread on another forum where other folks have been telling you the same thing. I see you might have to eat crow on multiple forums. (I might just have to do it on one forum).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Martin Tupper

TexasAg said:


> You can't order non-infringing products shut down, even if they once infringed. And even if you did order it, you can't punish someone for not shutting down non-infringing products.


Are you being intentionally obtuse? The hardware is not the product. The software is not the product. The _DVR's_ are the product...the infringing product.

The court can order the DVR's shut down if one of their components is found to be infringing. In this case, the DVR's have been found to be running on infringing software. If Echostar has come up with software that is non-infringing and/or colorably different, then they must convince the court of that in order to restart the infringing products.



TexasAg said:


> My guess is yes. We'll see on Friday!


Based on what,
The court's previous explanation of what "disable the DVR functionality" means?
Echostar's failure to act in good faith by providing this work-around for the court's consideration _before _the injunction went into effect?
Judge Folsom's fondness with Echostar's conduct throughout the trial and appeal?


----------



## Greg Bimson

TexasAg said:


> We'll see what happens on Friday and (if necessary) on appeal. I will say I was just looking around and came across a thread on another forum where other folks have been telling you the same thing. I see you might have to eat crow on multiple forums. (I might just have to do it on one forum).


If I am wrong, I'd be happy to eat crow. I have no problem with that.

However, I should introduce you to jacmyoung on the other forum, because you two have awfully similar misconceptions about what a contempt proceeding actually is.


----------



## TexasAg

Martin Tupper said:


> Are you being intentionally obtuse? The hardware is not the product. The software is not the product. The _DVR's_ are the product...the infringing product.


No, I'm just ignoring something that I've repeatedly dealt with already - the software is what infringed. Tivo actually had "apparatus" and "method" claims, and it was Echo's software (embodied on a DVR) that infringed the apparatus and method claims. Therefore, if you change the software, you've created a new or modified "product" (same hardware, different software). Since it is a new or modified product, the colorably different standard applies, and Echo only needs to show that the new software is more than colorably different to avoid contempt.



Martin Tupper said:


> The court can order the DVR's shut down if one of their components is found to be infringing. In this case, the DVR's have been found to be running on infringing software. If Echostar has come up with software that is non-infringing and/or colorably different, then they must convince the court of that in order to restart the infringing products.


Gee, that almost sounds like you're saying that if Echo goes to court and shows that they are using colorably different software, they can avoid being held in contempt. I wonder who else might have been saying that for the past few days?



Greg Bimson said:


> I should introduce you to jacmyoung on the other forum, because you two have awfully similar misconceptions about what a contempt proceeding actually is.


I wonder how many combined decades of patent experience jacmyoung and I have.

Anyway, this has been fun, but I've (more than adequately) said what the standard is and what I think will happen. We'll see on Friday and then during any following contempt proceeding.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> Huh? Do you know what the standard is for a preliminary injunction in a patent case? Here they are: (1) the likelihood of the patentees success on the merits; (2) irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties; and (4) the public interest. Likelihood of success means the patent in question is likely valid and the accused infringer likely infringes. That is very different from what we are talking about (the claim that "infringing product" includes "products that were but are no longer infringing" in the context of a permanent injunction).


So injunctions can be enforced with a presumption of infringement until proven otherwise. Judge Folsom addressed the four points when he imposed the injunction. Dish has a long history of being proven wrong about claims of noninfringement. There is absolutely no reason to give them the benefit of the doubt. The injunction has no provisions for such a thing anyway.


----------



## Martin Tupper

TexasAg said:


> No, I'm just ignoring something that I've repeatedly said - the software is what infringed. Tivo actually had "apparatus" and "method" claims, and it was Echo's software (embodied on a DVR) that infringed the apparatus and method claims. Therefore, if you change the software, you've created a new or modified "product" (same hardware, different software). Since it is a new or modified product, the colorably different standard applies, and Echo only needs to show that the new software is more than colorably different to avoid contempt.
> 
> Gee, that almost sounds like you're saying that if Echo goes to court and shows that they are using colorably different software, they can avoid being held in contempt. I wonder who else might have been saying that for the past few days?


Almost. If Echo had gone to court before the injuction went into effect and showed that they were going to start using more than colorably different software, they could avoided the injunction altogether. They didn't. The injunction is now in effect. Echostar is currently ignoring the injunction. Echostar is in contempt.

Please show me the part where the judge told them the had to "disable DVR functionality...or just unilaterally declare you've installed some other software that has not been vetted by this court or any other".


----------



## Greg Bimson

TexasAg said:


> Anyway, this has been fun, but I've (more than adequately) said what the standard is and what I think will happen. We'll see on Friday and then during any following contempt proceeding.


And when the "standard" you believe applies in this case is not used in the contempt proceeding because it does not apply...


TexasAg said:


> I wonder how many combined decades of patent experience jacmyoung and I have.


All the experience in the world won't make up for the fact you were schooled by a guy without any patent experience.


----------



## bidderman9

Let me start a little different train of thought. There appears to be a difference of opinion (surprise surprise) between Echo* and Tiv0 in regards to the date the injunction takes effect. I am guessing that has relevance to whether Echo* is in violation of the injunction. So what is everyones opinion as to when the injunction took effect and does that ultimately impact whether Echo* is in violation or not?


----------



## sbiller

All,

This thread has been thoroughly educational on patent law and interesting to read. I applaud everyone for arguing the merits of the case (pros and cons) in an intelligent, friendly manner. It'll be really interesting to find out who is right in the near future. 

Cheers,
Sam


----------



## ariel1

The point most seem to be missing is that the original injunction issued by Folsom was based on both hardware and software infringement. The hardware being remanded changes everything. If the hardware still infringes then it doesnt matter what software workaround Echo comes up with. Very odd that they remanded the hardware claim but did not change the language of the injunction.


----------



## TexasAg

Martin Tupper said:


> Almost. If Echo had gone to court before the injuction went into effect and showed that they were going to start using more than colorably different software, they could avoided the injunction altogether. They didn't. The injunction is now in effect. Echostar is currently ignoring the injunction. Echostar is in contempt.


Only if the standard is "Echo can never ever fix the infringing software in its DVRs."

That's not the standard.



Greg Bimson said:


> And when the "standard" you believe applies in this case is not used in the contempt proceeding because it does not apply.


The standard applies to modified products. Echo modified their product. Hmm, I think the standard might apply.



Greg Bimson said:


> All the experience in the world won't make up for the fact you were schooled by a guy without any patent experience.


We'll see.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## kido

just for the record, echostar is not asking for the injunction to be lifted. they claim to be in compliance with the injunction, both in spirit and by the letter of the law.


----------



## Greg Bimson

ariel1 said:


> The hardware being remanded changes everything. If the hardware still infringes then it doesnt matter what software workaround Echo comes up with. Very odd that they remanded the hardware claim but did not change the language of the injunction.


If the reversal of the hardware verdict changed everything, why wasn't the injunction changed? It does no good to be addressed now; it should have been addressed upon appeal.


----------



## ariel1

Greg Bimson said:


> If the reversal of the hardware verdict changed everything, why wasn't the injunction changed? It does no good to be addressed now; it should have been addressed upon appeal.


That was exactly my point. Not sure why it wasnt addressed in the appeal, and that is why I think this issue is not as cut and dry as some on this board have been arguing. Colorbly different or not.


----------



## TexasAg

Greg Bimson said:


> If the reversal of the hardware verdict changed everything, why wasn't the injunction changed? It does no good to be addressed now; it should have been addressed upon appeal.


Except the "hardware" claims were remanded for further proceedings consistent with the appeals court decision, which found no literal infringement of the "hardware" claims. The trial judge just can't enforce the injunction as written if its scope is too broad in light of the appeal decision.

That said, I don't know if it is. If the DVRs listed in the injunction only violated the "software" claims, the list of DVRs in the injunction didn't need modification.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## morac

TexasAg said:


> That said, I don't know if it is. If the DVRs listed in the injunction only violated the "software" claims, the list of DVRs in the injunction didn't need modification.


There's Dish's out right there. Start selling their DVR's using a different model number that's not listed in the injunction.


----------



## Curtis

TexasAg said:


> That said, I don't know if it is. If the DVRs listed in the injunction only violated the "software" claims, the list of DVRs in the injunction didn't need modification.


Appeals Court:



> "We affirm the judgment of infringement of the software claims with
> respect to all of the accused devices."


----------



## usnret

Couldn't judge tell Dish, OK you can let the DVRs run, but you have to take the "bad" software out? Then, when Dish can show the judge that their new software is not "bad", Dish can put it in the DVRs??


----------



## Martin Tupper

TexasAg said:


> Martin Tupper said:
> 
> 
> 
> Almost. If Echo had gone to court before the injuction went into effect and showed that they were going to start using more than colorably different software, they could avoided the injunction altogether. They didn't. The injunction is now in effect. Echostar is currently ignoring the injunction. Echostar is in contempt.
> 
> 
> 
> Only if the standard is "Echo can never ever fix the infringing software in its DVRs."
> 
> That's not the standard.
Click to expand...

Huh? Where did you get that from? Of course they can try to fix the software. But unless and until they've _convinced the court_ that they've fixed the software, those eight models of DVR remain enjoined from providing "DVR functionality". Echostar cannot ignore the injunction because they claim they're "good" now. The injunction does not afford them that option.

If they want to keep those DVR's functioning, they need to get the injunction lifted, or else they are in contempt of the injunction order.


----------



## Greg Bimson

ariel1 said:


> That was exactly my point. Not sure why it wasnt addressed in the appeal, and that is why I think this issue is not as cut and dry as some on this board have been arguing. Colorbly different or not.


Because DISH/SATS forgot to argue that the injunction needed to be addressed if the Court of Appeals reversed or vacated only part of the verdict. The Court of Appeals only addresses what the parties in the suit wish to modify, with respect to applications of law.


----------



## ariel1

Greg Bimson said:


> Because DISH/SATS forgot to argue that the injunction needed to be addressed if the Court of Appeals reversed or vacated only part of the verdict. The Court of Appeals only addresses what the parties in the suit wish to modify, with respect to applications of law.


I find it hard ot beleive that they forgot, but either way now it will make for an interesting issue for Judge Folsom.


----------



## TexasAg

Martin Tupper said:


> or else they are in contempt of the injunction order.


And what standard does the court use when determining contempt in a patent contempt proceeding?



Greg Bimson said:


> Because DISH/SATS forgot to argue that the injunction needed to be addressed if the Court of Appeals reversed or vacated only part of the verdict. The Court of Appeals only addresses what the parties in the suit wish to modify, with respect to applications of law.


Nice try. If the injunction needs to be modified to take account of the decision on appeal, it better be modified. Otherwise, that is yet another reason for a subsequent appeal.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

jacmyoung said:


> And what standard does the court use when determining contempt in a patent contempt proceeding?


There is no such thing as a "patent contempt proceeding". TiVo has filed for a contempt hearing because DISH/SATS has ignored the injunction order to disable "Infringing Products", and because DISH/SATS has ignored the injunction order to stop sales of "Infringing Products". Neither of these are "colorably different", so the standard you believe works does not apply.

If TiVo files a contempt hearing to enjoin products "only colorably different with respect to the Infringed Claims", then the standard you mention will be applied.


----------



## TexasAg

Greg Bimson said:


> Neither of these are "colorably different", so the standard you believe works does not apply.


Better be careful, Greg. You've just applied the standard you disagree with. And you omit the fact that the boxes with new software could be colorably different. What if all of the Echo DVRs do have colorably different software?
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> Nice try. If the injunction needs to be modified to take account of the decision on appeal, it better be modified. Otherwise, that is yet another reason for a subsequent appeal.


Hello? Is this thing on?

The case was appealed, and the Court of Appeals allowed the injunction to stand as-is, and removed the stay so it became active and in full effect.

Who is supposed to change the injunction now? And upon appeal, wouldn't this go back to the exact same Court of Appeals that allowed the injunction to stand, as-is?


Greg Bimson said:


> Neither of these are "colorably different", so the standard you believe works does not apply.





jacmyoung said:


> Better be careful, Greg. You've just applied the standard you disagree with. And you omit the fact that the boxes with new software could be colorably different.


I applied no standard. It does not matter that "Infringing Products" may have been modified; they are still "Infringing Products", and will need to be disabled. Just because there is new software on them does not make them colorably different, anyways.


----------



## TexasAg

Greg Bimson said:


> It does not matter that "Infringing Products" may have been modified; they are still "Infringing Products", and will need to be disabled.


Your grasp of patent law and the standards applied during contempt proceedings in patent cases is mind-boggling. "Your honor, it doesn't matter that Echo isn't infringing, they still need to disable their non-infringing hardware executing their non-infringing software." The appeal would take about 15 seconds.

Anyway, you're tiresome. We'll see come Friday, the following contempt proceeding, and the inevitable appeal. See ya (and you better hope your company doesn't get sued for infringing software patents and is hauled before a judge with your mindset).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## nrc

Curtis said:


> The question won't even come up. TiVo won't be filing for contempt on anything other than Dish not doing what the injunction says to do.


Not necessarily. TiVo's agenda said that they think E* is in contempt purely on the legal point of failing to abide by the language of the injunction. But they also said that they would ask for a limited discovery order that would allow them to prove contempt on the basis of continued infringment if the judge doesn't agree.


----------



## old7

TexasAg said:


> Your grasp of patent law and the standards applied during contempt proceedings in patent cases is mind-boggling. "Your honor, it doesn't matter that Echo isn't infringing, they still need to disable their non-infringing hardware executing their non-infringing software." The appeal would take about 15 seconds.
> 
> Anyway, you're tiresome. We'll see come Friday, the following contempt proceeding, and the inevitable appeal. See ya (and you better hope your company doesn't get sued for infringing software patents and is hauled before a judge with your mindset).


Please point out where it has been ruled that "Echo isn't infringing." I must have missed that part.


----------



## Curtis

nrc said:


> Not necessarily. TiVo's agenda said that they think E* is in contempt purely on the legal point of failing to abide by the language of the injunction. But they also said that they would ask for a limited discovery order that would allow them to prove contempt on the basis of continued infringment if the judge doesn't agree.


 The contempt hearing on not shutting off the named DVRs will be ASAP. TiVo isn't ready for the second contempt hearing (software) yet.


----------



## TexasAg

old7 said:


> Please point out where it has been ruled that "Echo isn't infringing." I must have missed that part.


My point is that Greg apparently thinks it is irrelevant whether Echo's non-infringing hardware is currently executing non-infringing software or not, even though it was the software that was found to infringe on those DVRs (yes, Martin, without the software, the hardware by itself did not infringe, and it's why they called Tivo's claims "hardware claims" and "software claims"). That's contrary to well-established patent law. The court cannot punish Echo for operating non-infringing hardware with colorably different or non-infringing software, regardless of the injunction.



Curtis said:


> The contempt hearing on not shutting off the named DVRs will be ASAP. TiVo isn't ready for the second contempt hearing (software) yet.


Just don't lose faith in the justice system if there is only one contempt proceeding and Echo wins. Or if Tivo wins in the trial court and the contempt finding and injunction are stayed pending another lengthy appeal.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

I guess it's OK for a suspect to jump bail as long as he says later that he didn't commit the crime.


----------



## GoHokies!

Curtis said:


> I guess it's OK for a suspect to jump bail as long as he says later that he didn't commit the crime.


Maybe in College Station it works that way.


----------



## old7

TexasAg said:


> My point is that Greg apparently thinks it is irrelevant whether Echo's non-infringing hardware is currently executing non-infringing software or not, even though it was the software that was found to infringe on those DVRs (yes, Martin, without the software, the hardware by itself did not infringe, and it's why they called Tivo's claims "hardware claims" and "software claims"). That's contrary to well-established patent law. The court cannot punish Echo for operating non-infringing hardware with colorably different or non-infringing software, regardless of the injunction.


The point is the devices are considered to be infringing. At some point the devices because of the changes in software may be found to be non-infringing, but that point in time has not yet occurred. When the software has been found to be no longer infringing, please let me know.

Because until the devices have been found to no longer infringe Echostar/Dish Network is violating the injunction.


----------



## snickerrrrs

See what happens when you get a bunch of lawyers (or law students) together? Nothing gets done but they continue to bill by the hour!


----------



## Greg Bimson

TexasAg said:


> Your grasp of patent law and the standards applied during contempt proceedings in patent cases is mind-boggling.


You'll see soon enough.


TexasAg said:


> The court cannot punish Echo for operating non-infringing hardware with colorably different or non-infringing software, regardless of the injunction.


And it turns out that injunctions mean absolutely nothing; all guilty parties are free to rewrite on a whim, even by redefining plain terms as disable and "Infringing Products".


----------



## old7

TexasAg said:


> Just don't lose faith in the justice system if there is only one contempt proceeding and Echo wins. Or if Tivo wins in the trial court and the contempt finding and injunction are stayed pending another lengthy appeal.


So when it happens that the judge tells Dish Network to turn the infringing devices off or that they are in contempt of the injunction you will come back here and admit that you don't have a clue how patent law works.


----------



## TexasAg

old7 said:


> The point is the devices are considered to be infringing. At some point the devices because of the changes in software may be found to be non-infringing, but that point in time has not yet occurred. When the software has been found to be no longer infringing, please let me know.
> 
> Because until the devices have been found to no longer infringe Echostar/Dish Network is violating the injunction.


See, at least you acknowledge that Echo could download software to their DVRs and not infringe or violate the injunction. Some folks won't even admit that. It's a smaller jump from "Echo must prove they don't infringe" to "Echo only needs to prove their software is more than colorably different."



old7 said:


> So when it happens that the judge tells Dish Network to turn the infringing devices off or that they are in contempt of the injunction you will come back here and admit that you don't have a clue how patent law works.


If that happens, I'll argue the trial judge applied the wrong standard. If the appeals court upholds the contempt finding, I'll admit I was wrong. If the appeal court reverses the trial judge, you'll have to acknowledge I might know a little bit more about patent law than you'd care to admit. I'll stack up my patent experience against yours any day.



Greg Bimson said:


> You'll see soon enough.And it turns out that injunctions mean absolutely nothing; all guilty parties are free to rewrite on a whim, even by redefining plain terms as disable and "Infringing Products".


Greg, I'm tired of arguing the same thing with you. You've basically admitted that, as far as you're concerned, it doesn't matter if non-infringing software has been placed on non-infringing hardware. That's wrong, but you're entitled to your opinion.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

jacmyoung said:


> You've basically admitted that, as far as you're concerned, it doesn't matter if non-infringing software has been placed on non-infringing hardware.


You are definitely jacmyoung, because you also believe the new software no longer infringes.

I don't care what software is now on the "Infringing Products", because that new software has not been judged at all. What I do know is the injunction order demands a shut down of eight models of DVR, and there is nowhere in the injunction that allows DISH/SATS relief from the "disable" terms, other than allowing 192,708 DVR's to remain active.

However, feel free to continue to interpret everything legally possible going DISH/SATS way.


----------



## TexasAg

Greg Bimson said:


> You are definitely jacmyoung, because you also believe the new software no longer infringes.
> 
> I don't care what software is now on the "Infringing Products", because that new software has not been judged at all. What I do know is the injunction order demands a shut down of eight models of DVR, and there is nowhere in the injunction that allows DISH/SATS relief from the "disable" terms, other than allowing 192,708 DVR's to remain active.


The judge has to decide if the new software is more than colorably different. If he does, there can be no contempt, regardless of what the injunction says. Think of it this way - the "colorably different" standard is used to decide whether the current versions of Echo's products fall under the existing finding of infringement or require a new infringement trial. More than a colorable difference means they need a new infringement trial to decide whether the more than colorably different products infringe. No difference or just colorable difference means they can handle it under the contempt proceeding.



Greg Bimson said:


> However, feel free to continue to interpret everything legally possible going DISH/SATS way.


And you're free to continue arguing that Echo should get in trouble, even if it means disregarding the actual case law. Anyway, I'm tired, and I'll be back to admit I was wrong if and when a finding of contempt is actually upheld against Echo. I'll hope you're willing to do the same if it isn't.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

jacmyoung said:


> The judge has to decide if the new software is more than colorably different. If he does, there can be no contempt, regardless of what the injunction says.


No, Judge Folsom does not have to decide anything on the new software, until one party requests a hearing on the new software, which neither party has done.


----------



## samo

snickerrrrs said:


> See what happens when you get a bunch of lawyers (or law students) together? Nothing gets done but they continue to bill by the hour!


LOL! Best of the last 200 or so posts in this thread!
Anybody care to use common sense instead of legal arguments? If Dish removed all the software from the infringing boxes would you still argue that they still need to shot them down (like come to everybody home and turn them off)? Probably not.
Now if they uploaded the software on this boxes that turns them into game consoles. Would you argue that they need to shot the boxes off? Even if you are TiVo shareholder you wouldn't.
So why is it any different that new software uploaded to these boxes makes them DVRs again? It is a new software, it never was scrutinized for any kind of infringement.


----------



## Curtis

"what EchoStar is doing now is what it proposed to the Court in 2006, and 
which the Court rejected. "

"In opposing EchoStar's language, TiVo warned that EchoStar's formulation would be a recipe for abuse:"



> This clever formulation is an invitation for EchoStar to engage in mischief. Such an injunction would only result in EchoStar providing what it deemed as "non-infringing" DVR software to its
> already-found-to-be-infringing DVRs, creating the opportunity for interminable disputes to determine what exactly is "infringing DVR software."


----------



## old7

TexasAg said:


> If that happens, I'll argue the trial judge applied the wrong standard. If the appeals court upholds the contempt finding, I'll admit I was wrong. If the appeal court reverses the trial judge, you'll have to acknowledge I might know a little bit more about patent law than you'd care to admit. I'll stack up my patent experience against yours any day.


I have a feeling that the court will find Dish in contempt. But before Dish turns off a single DVR they will reach an agreement with TiVo. It will never make it back to the appellate court.

By the way I was the in-house technical adviser to counsel on 3 patent cases for the printing company I worked for in the early 90's. One came back from the appellate court and made it to a contempt hearing. All were settled out of court.


----------



## Greg Bimson

samo said:


> Anybody care to use common sense instead of legal arguments?


Because "common sense" doesn't matter in a court of law; legal arguments matter.


samo said:


> It is a new software, it never was scrutinized for any kind of infringement.


Common sense says the DVR 501, 508, 510, 522, 625, 721, 921 and 942 were all infringing (hence the definition "Infringing Products"), and part of the remedy for that violation was a shut down of the DVR functions in the "Infringing Products". In a court of law, these boxes are still considered infringing.

The first mention to Judge Folsom that there was new software on these boxes was after the injunction took effect. However, claiming a work around does not supercede the injunction order, which demands those DVR's be disabled.

Is that unfair to DISH/SATS? Maybe. Then again, this case was filed in January, 2004. A guilty verdict and no money four years later, TiVo doesn't have much recourse other than a contempt proceeding based off a rather easily worded injunction.

The wheels of justice turn slowly. And DISH/SATS is going to be caught up in them. Especially since it appears they forgot to address the injunction order on appeal.


----------



## segaily

The hardware on those DVRs would never have been sold without the infringing software. I know nothing about the subject but it seems to me it should not be legal for Echo to profit in any way from boxes it sold with illegal software. Now that they have new software new sales should be allowed but the boxes sold with the illegal software should be disabled.


----------



## steve614

Curtis said:


> I guess it's OK for a suspect to jump bail as long as he says later that he didn't commit the crime.


Or like someone on probation for a DWI being able to get out of peeing in a cup just by saying "Trust me, Mr. probation officer, I'm not drinking".
That's the tone _I'm_ getting from TexasAg's posts.
If that's how things work in patent law, then the system is seriously F'd up.

My 2 cents.


----------



## ZeoTiVo

TexasAg said:


> My point is that Greg apparently thinks it is irrelevant whether Echo's non-infringing hardware


also the hardware part was remanded as the fed court said they applied the wrong standard. The hardware also has not been ruled "non-infringing" - there is just no official ruling of "infringing" at this time.


----------



## ZeoTiVo

samo said:


> LOL! Best of the last 200 or so posts in this thread!
> Anybody care to use common sense instead of legal arguments? If Dish removed all the software from the infringing boxes would you still argue that they still need to shot them down (like come to everybody home and turn them off)? Probably not.
> Now if they uploaded the software on this boxes that turns them into game consoles. Would you argue that they need to shot the boxes off? Even if you are TiVo shareholder you wouldn't.
> So why is it any different that new software uploaded to these boxes makes them DVRs again? It is a new software, it never was scrutinized for any kind of infringement.


if all software was removed the ox would be shutdown and thus complying with the injunction.

if the software turned it into a game console then therewould be no recording of TV to the hard drive and thus complying with the injunction.

Now they have different DVR software - so the DVRs are not shutdown and they are not in compliance with the injunction.

Common sense tells me that DISH will of course work to show the software is not infringing - *whether it truly is or not*. Common sense has me look at the past pronouncements from DISH and not trust anything they, or paid outsiders DISH gets, say now.

Common sense tells me that since DISH infringed , they do not get the benefit of simply saying the software is different but should have to turn off the DVRs per injunction until such time as a ruling is made that the software is colorably different *and* no longer found to be infringing.

Common sense tells me that DISH has played the system and has no regard for ethical business practices but will be very agressive and predatory in trying to gain advantage over a rival company. I see no common sense reason for a Judge to cut DISH any slack.


----------



## ZeoTiVo

Greg Bimson said:


> Especially since it appears they forgot to address the injunction order on appeal.


they did not forget. If they had put the injunction before the Fed court they would have no wiggle room now to make things grind along slowly.

now there has to be a meeting, then a contempt hearing - THEN they appeal the injunction. A much better time waster than lumping it into the original appeal.


----------



## Greg Bimson

ZeoTiVo said:


> they did not forget. If they had put the injunction before the Fed court they would have no wiggle room now to make things grind along slowly.


Except there already is no wiggle room as the enjoined devices are still being sold and are still functional, which completely opposite the plain language of the injunction.

I don't even understand DISH/SATS position on this. Why drag this out when risking contempt, when in the end there should be a license deal?

My guess is the CEO of DISH/SATS has the position of "we'll deal with TiVo when pigs fly". After all, they spent the money developing a workaround and are risking contempt. And it isn't unlike DISH/SATS to slow play a poker hand. It also lately is like they only have the second best hand on the table.


----------



## BlackBetty

E* is just praying that the last card thrown will be exactly what they need to complete a royal flush (if they don't get it, they have a worthless hand). Seems like a foolish gamble at this point. They could have dealt with TiVo months ago, or even years ago and ended this on much better terms for E. 

I just hope Folsom allows them zero wiggle room and TiVo can milk E for all its worth.


----------



## ZeoTiVo

Greg Bimson said:


> Except there already is no wiggle room as the enjoined devices are still being sold and are still functional, which completely opposite the plain language of the injunction.
> 
> I don't even understand DISH/SATS position on this. Why drag this out when risking contempt, when in the end there should be a license deal?
> 
> My guess is the CEO of DISH/SATS has the position of "we'll deal with TiVo when pigs fly". After all, they spent the money developing a workaround and are risking contempt. And it isn't unlike DISH/SATS to slow play a poker hand. It also lately is like they only have the second best hand on the table.


As I siad in my other posts - DISH has the ace-in-the-hole of they are the only ones who can turn off the DVRs. I agree that the language in the injunction is plain - turn off the DVRs. DISH tried to change that language and failed so now they go to plan B - which is to throw new software out and then change the topic from "Why are the DVRs still on?" to the topic of "DVRs no longer infringe as the software is colorably different"

It seems they have enough case law to cite on this topic to make it play out. Judge Folsom is either going to have to call their hand by finding contempt and risk being overturned on appeal or he will fold his hand and toss it over to TiVo to pursue or not.

The thing that sticks with me is that TiVo has seen DISH's hand (they have the source code) and still seems prepared to call DISH out for contempt. If I was betting I would stake my bet on this last fact.


----------



## TexasAg

steve614 said:


> Or like someone on probation for a DWI being able to get out of peeing in a cup just by saying "Trust me, Mr. probation officer, I'm not drinking".
> That's the tone _I'm_ getting from TexasAg's posts.
> If that's how things work in patent law, then the system is seriously F'd up.


You're free to disagree. We're not talking about criminal proceedings or bail jumping. We're talking about an area of the law where the cases specifically allow an infringer to produce and release a modified device that is "more than colorably different" without being cited for contempt of an injunction.



ZeoTiVo said:


> also the hardware part was remanded as the fed court said they applied the wrong standard. The hardware also has not been ruled "non-infringing" - there is just no official ruling of "infringing" at this time.


Until there is a finding of infringement upheld on appeal, there can be no presumption that the Echo hardware infringes. At this point, the only hardware infringement finding was vacated. Since there is no valid finding of infringement, the hardware is currently "non-infringing." To use the language others here apparently like, the hardware is "presumed non-infringing until proven infringing."



Greg Bimson said:


> I don't even understand DISH/SATS position on this. Why drag this out when risking contempt, when in the end there should be a license deal?


(1) Ego (most likely on both sides)
(2) They spent time and money designing around Tivo's patent, and likely feel that was throwing money away if they now take a license from Tivo
(3) They feel they have a strong argument against contempt - they loaded new software onto the DVRs, shut them down, and restarted them with new software. As far as Echo is concerned, all of the listed DVRs have been modified, and the "colorably different" standard applies. They'll likely wait to see how the judge handles it.



ZeoTiVo said:


> The thing that sticks with me is that TiVo has seen DISH's hand (they have the source code) and still seems prepared to call DISH out for contempt. If I was betting I would stake my bet on this last fact.


Someone else (I think) said this seemed like a trap by Tivo (saying enforce the injunction, then arguing the software wasn't colorably different). I don't think it is. It's actually Tivo trying to say "don't apply the colorably different standard, but if you do then Echo is still in trouble."

What is Tivo going to say - "Your honor, Echo's software is in fact more than colorably different"? Of course Tivo is going to argue that Echo's software isn't more than colorably different and try to convince a court of that. If they don't, they basically just bought themselves a new infringement trial.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> What is Tivo going to say - "Your honor, Echo's software is in fact more than colorably different"? Of course Tivo is going to argue that Echo's software isn't more than colorably different and try to convince a court of that. If they don't, they basically just bought themselves a new infringement trial.


TiVo can also say - fine, have DISH pay us x dollars due and then drop the whole thing. It would still be a good windfall for TiVo and then can still point to it as a victory. Paid for infringement and made DISH change the software.

TiVo however is betting money (in the form of Lawyer's fees and so forth) that they have a valid contempt claim. Plus I would lean more toward the good reputation of TiVo, who has been proven right by a court, versus the really bad reputation of DISH which has been shown wrong/lying in what they say time and again. DISH's bad reputation even extends beyond this case into other cases which they ended up loosing locals completely on.


----------



## HiDefGator

segaily said:


> The hardware on those DVRs would never have been sold without the infringing software. I know nothing about the subject but it seems to me it should not be legal for Echo to profit in any way from boxes it sold with illegal software. Now that they have new software new sales should be allowed but the boxes sold with the illegal software should be disabled.


Unfortunately how much money the infringer made is not as important as how much the infringee lost. It really doesn't matter if E* made 10 billion off the dvr's. If Tivo only lost $50K from the infringement then $50K is more likely to be the settlement.


----------



## HiDefGator

ZeoTiVo said:


> TiVo can also say - fine, have DISH pay us x dollars due and then drop the whole thing. It would still be a good windfall for TiVo and then can still point to it as a victory. Paid for infringement and made DISH change the software.


This is what I've said will happen for some time now. I'm not sure when $150+ million got to be chicken feed. But if I had to write someone a check for that after spending another $100 million on lawyers and writing new software, I'd sure feel like I'd lost.


----------



## Greg Bimson

HiDefGator said:


> Unfortunately how much money the infringer made is not as important as how much the infringee lost. It really doesn't matter if E* made 10 billion off the dvr's. If Tivo only lost $50K from the infringement then $50K is more likely to be the settlement.


But exactly what terms would a settlement include?

DISH/SATS: We'll pay you $300 million right now, never pay a dime in licensing fees and expect lifetime licensing on all your patents with no right to sue.
TiVo: You are already at $150 million, not including any of the 622/722 receivers, and this case is only for the Time Warp patent. And because of your questionable actions we aren't sure you are trustworthy to be a business partner, so we will maintain the right to bring a lawsuit. You'd better up the ante.


----------



## ZeoTiVo

HiDefGator said:


> This is what I've said will happen for some time now. I'm not sure when $150+ million got to be chicken feed. But if I had to write someone a check for that after spending another $100 million on lawyers and writing new software, I'd sure feel like I'd lost.


yes 150 million or more is significant to TiVo and they are, of course, not betting that though, just delaying when it gets to them.

The bet is on lawyers fees for going after contempt with DISH. Since TiVo could have chalked up a good win but chose to press on instead is my reasoning for TiVo feeling it had a significantly strong case. Now we wait for Friday and see if the Judge agrees or makes TiVo shove yet more lawyer's fees in the pot to get the contempt hearing.


----------



## HiDefGator

Greg Bimson said:


> But exactly what terms would a settlement include?
> 
> DISH/SATS: We'll pay you $300 million right now, never pay a dime in licensing fees and expect lifetime licensing on all your patents with no right to sue.
> TiVo: You are already at $150 million, not including any of the 622/722 receivers, and this case is only for the Time Warp patent. And because of your questionable actions we aren't sure you are trustworthy to be a business partner, so we will maintain the right to bring a lawsuit. You'd better up the ante.


I think E* is offering ~ $130 million today with no other stipulations at all. E* believes they have noninfringing DVR's now, so no license is needed. Tivo retains the right to pursue infringment claims against both the new software and all the hardware in the future. I just don't think Tivo will waste time on a second trial now that the hardware does not literally infringe and the software will be harder to prove than last time.


----------



## Greg Bimson

HiDefGator said:


> I think E* is offering ~ $130 million today with no other stipulations at all. E* believes they have noninfringing DVR's now, so no license is needed. Tivo retains the right to pursue infringment claims against both the new software and all the hardware in the future. I just don't think Tivo will waste time on a second trial now that the hardware does not literally infringe and the software will be harder to prove than last time.


Let's assume this is correct, for just one moment.

Now let's assume that DISH/SATS is found in contempt. Now what is that worth? DISH/SATS needs to get this settled, and if DISH/SATS is found in contempt, TiVo holds all the cards. I would think a finding of contempt with a boatload of fines would change that tune, quickly.

A second trial would not be needed for software infringement. Infringing the software claims of the Time Warp patent is another restraint given by the injunction. If the new software infringes, it will be brought up in a contempt proceeding.


----------



## TexasAg

Greg Bimson said:


> A second trial would not be needed for software infringement. Infringing the software claims of the Time Warp patent is another restraint given by the injunction. If the new software infringes, it will be brought up in a contempt proceeding.


While we may disagree on the standard for the DVRs listed in the injunction, Greg, you're dead wrong on this. Even Tivo admits the standard for the modified software is "colorably different":

_Regarding the modified software, the court need only compare it to the original infringing product. Unless there is "more than a colorable difference" between the two, a contempt proceeding is appropriate. KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985). Then, so long as the modified software "falls within the . . . adjudicated scope of the [patent] claims," EchoStar is in contempt of court. KSM Fastening, 776 F.2d at 1530._

Only if the new software is not "more than colorably different" can it be handled in a contempt proceeding.

Also note that the new software is compared against the old software, not the patent claims, in determining if it is more than colorably different. A comparison against the claims won't occur unless and until the court decides the new software is not "more than colorably different."
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TiVo may have made that argument now. That does not mean TiVo could make a separate argument later based upon a strict reading of the injunction...


----------



## HiDefGator

Greg Bimson said:


> Now let's assume that DISH/SATS is found in contempt. Now what is that worth?


If the that happens it will be appealed. A stay on the injunction will be issued during the appeal. Most tend to believe the appeals court will order a new trial for the software and send it back. Same result.

Folsom could actually save Tivo time by immediately declaring they need a new trial.


----------



## TexasAg

Greg Bimson said:


> TiVo may have made that argument now. That does not mean TiVo could make a separate argument later based upon a strict reading of the injunction...


Yeah, why let Tivo's actual arguments and admissions regarding Echo's modified software get in your way?

The standard for Echo's modified software is clear to even Tivo's lawyers.



HiDefGator said:


> If the that happens it will be appealed. A stay on the injunction will be issued during the appeal. Most tend to believe the appeals court will order a new trial for the software and send it back. Same result.


The appeals court has already upheld the software infringement finding. They won't overrule that during an appeal of a contempt finding.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

HiDefGator said:


> Most tend to believe the appeals court will order a new trial for the software and send it back.


I don't think so.

It is a mockery of the court to believe...

Defendant found guilty of infringement on "Infringing Products".
Defendant modifes "Infringing Products".
Injunction to disable "Infringing Products" placed in full force.
Defendant receives stay so "Infringing Products" can continue to operate.

Plaintiff files another patent infringement suit regariding modification of "Infringing Products" 
Defendant found guilty of infringement on "Infringing Products" modification.
New injunction placed in full force and effect disabling "Infringing Products"
Defendant modifes "Infringing Products" modification.
Defendant receives stay so "Infringing Products" can continue to operate.

And according to the logic, this happens _ad infinitum_, with no end, ever, thus making a mockery of the court.

But there will be an end.

The only reason the Court of Appeals reversed the hardware verdict was because of a literal interpretation of the hardware claims. Now there are some that expect the Court of Appeals to disregard the literal meaning of this sentence:


> Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber.


Good luck with that...


----------



## ZeoTiVo

TexasAg said:


> Yeah, why let Tivo's actual arguments and admissions regarding Echo's modified software get in your way?
> 
> The standard for Echo's modified software is clear to even Tivo's lawyers.


also clear to TiVo lawyers is that their first and main argument is that the injunction does not allow for modified software to satisfy the injunction and that indeed the lower court specifically rejected such language as proposed by DISH at the time of writing the injunction.


----------



## TexasAg

Greg Bimson said:


> It is a mockery of the court to believe...
> 
> Defendant found guilty of infringement on "Infringing Products".
> Defendant modifes "Infringing Products".
> Defendant receives stay so "Infringing Products" can continue to operate.
> 
> Plaintiff files another patent infringement suit regariding modification of "Infringing Products"
> Defendant found guilty of infringement on "Infringing Products" modification.
> Defendant modifes "Infringing Products" modification.
> Defendant receives stay so "Infringing Products" can continue to operate.
> 
> And according to the logic, this happens _ad infinitum_, with no end, ever, thus making a mockery of the court.


Echo can do this for as long as it wishes, as long as each version of its software is "more than colorably different" than any prior software versions that infringed. Each "more than colorably different" software version requires its own infringement trial. Each "not more than colorably different" software version would be handled by a contempt proceeding.

But keep in mind, each time Echo would owe damages for each "more than colorably different" version from the start of its use, and that would likely be tripled since "willful infringement" becomes more likely each time.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> But keep in mind, each time Echo would owe damages for each "more than colorably different" version from the start of its use, and that would likely be tripled since "willful infringement" becomes more likely each time.


keep in mind you are seeing this from the eyes of a software owner and I think that gives you a perpsective favorable to DISH since it is their software in question here.

The Judge may look at this from an entirely different perspective - and indeed should at least be balancing the rights of the software owner(DISH) with the rights of the agrieved party(TiVo) and as a result confirm the injunction as protecting TiVo and not as punishing DISH


----------



## TexasAg

ZeoTiVo said:


> keep in mind you are seeing this from the eyes of a software owner and I think that gives you a perpsective favorable to DISH since it is their software in question here.
> 
> The Judge may look at this from an entirely different perspective - and indeed should at least be balancing the rights of the software owner(DISH) with the rights of the agrieved party(TiVo) and as a result confirm the injunction as protecting TiVo and not as punishing DISH


But the standard is clear for new or modified products - Echo is allowed to introduce as many "more than colorably different" software versions that it wants to. The count can't handle those "more than colorably different" software versions in a contempt proceeding. Even Tivo's lawyers acknowledge that.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## timckelley

It's impressive how active this thread has become. I can't wait until Friday. I assume that whatever happens, at least one person in this thread will be needing to eat crow for dinner.


----------



## Greg Bimson

TexasAg said:


> But the standard is clear for new or modified products - Echo is allowed to introduce as many "more than colorably different" software versions that it wants to. The count can't handle those "more than colorably different" software versions in a contempt proceeding. Even Tivo's lawyers acknowledge that.


Then let me throw this out here...


> Each Defendant, its officers ... are hereby restrained and enjoined ... from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent


Of course, Infringed Claims only has the meaning of the two software claims in the patent. So, if the new software infringes...


----------



## TexasAg

Greg Bimson said:


> Of course, Infringed Claims only has the meaning of the two software claims in the patent. So, if the new software infringes...


The controlling law: An accused infringer is "entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device."

Note the word "entitled".



timckelley said:


> I assume that whatever happens, at least one person in this thread will be needing to eat crow for dinner.


I like mine deep-fried (tastes like chicken). Not sure what Greg's preference is.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

TexasAg said:


> The controlling law: An accused infringer is "entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device."


That is only the controlling case law, with respect to finding whether a new device is colorably different or not. That is not the case law for a contempt violation of a direct injunction order.

I'll take mine broiled. The wings fall off if done correctly.


----------



## HiDefGator

Greg,

You seem to be really focused on the problem of them being able to download attempt after attempt. Imagine for minute instead that what had infringed was the power cord instead of the software. Would you deny Dish the opportunity to send out new power cords to their users and still keep the boxes running? 

I contend the power cords are no different then the software in this example. They deserve a chance to fix the problem once. After that I'm on your side.


----------



## HiDefGator

And as long as you put enough bar-b-que sauce on my crow, I'll take two.


----------



## old7

TexasAg said:


> The controlling law: An accused infringer is "entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device."
> 
> Note the word "entitled".


You are doing a little cherry-picking there.



> The unreasonableness of a decree incorporating a vague or broad prohibition against "infringement" of a "patent" is alleviated because of the universal rule, to be addressed infra, that contempt proceedings, civil or criminal, are available only with respect to devices previously admitted or adjudged to infringe, and to other devices which are no more than colorably different therefrom and which clearly are infringements of the patent. This limitation is seen as properly balancing the interests of the respective parties. An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be too insubstantial to avoid contempt.
> 
> Conversely, where an injunction is written narrowly against a particular infringing device, contempt may, nevertheless, be found on the basis of a modified infringing device. An enjoined party under a narrow decree will not be permitted to escape on a purely "in rem" theory that only a particular device is prohibited, where it is evident that the modifications do not avoid infringement and were made for the purpose of evasion of the court's order. Again, the standard is whether the differences between the two devices are merely colorable. Accord McCullough Tool Co. v. Well Surveys, Inc., 395 F.2d 230, 233, 158 USPQ 81, 84 (10th Cir.), cert. denied, 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261, 159 USPQ 799 (1968), and cases cited therein.


----------



## Curtis

HiDefGator said:


> Greg,
> 
> You seem to be really focused on the problem of them being able to download attempt after attempt. Imagine for minute instead that what had infringed was the power cord instead of the software. Would you deny Dish the opportunity to send out new power cords to their users and still keep the boxes running?
> 
> I contend the power cords are no different then the software in this example. They deserve a chance to fix the problem once. After that I'm on your side.


If the injunction says to shut down the device, what good would a new power cord do?


----------



## HiDefGator

Curtis said:


> If the injunction says to shut down the device, what good would a new power cord do?


Let's try that argument then, you are suggesting that no matter what Dish did the judge would say, "No way Jose. I said shut the f***'s down and that's what I meant. Do that and then we can talk."

This only works if you assume that he would say that no matter what the situation was. Suppose instead of DVR's E* had made internet connected portable generators. (work with me here). E* comes back to the judge and says no your honor we haven't because we discovered some users might die if we turn off their generator.

Do you imagine the judge would say, "I said turn them off and that's what I meant!" Of course he wouldn't. Nor would he hold them in comtempt even though they clearly are. There are exceptions made by Judges every day.


----------



## Greg Bimson

Thank you, Curtis. Exactly. HiDefGator, I just want DISH/SATS to do exactly what the injunction states.

Using your scenario, if the power cords of the DVR's were deemed infringing, what would simply happen is that DISH/SATS would pay the infringee the damages for the old power cords, and be ordered to stop sales of the old power cords. There wouldn't be any case to modify what is already at the users home, as the power cords aren't attached to a monthly fee, where a DVR does have a monthly fee.


HiDefGator said:


> I contend the power cords are no different then the software in this example. They deserve a chance to fix the problem once. After that I'm on your side.


I agree, with one point of context:

If you are found infringing, you'd better let the court in on your plans for avoiding both infringement and the standing injunction. You do not spring on the court after the injunction is in full force and effect that you have new software, as it needs time to be evaluated.


----------



## Greg Bimson

HiDefGator said:


> Suppose instead of DVR's E* had made internet connected portable generators. (work with me here). E* comes back to the judge and says no your honor we haven't because we discovered some users might die if we turn off their generator.
> 
> Do you imagine the judge would say, "I said turn them off and that's what I meant!" Of course he wouldn't. Nor would he hold them in comtempt even though they clearly are. There are exceptions made by Judges every day.


But a DVR is a leisure activity. It is not life or death.


----------



## MichaelK

samo said:


> Here is a layman question to the attorneys between us.
> Dish deployed brand new software on non-infringing hardware. What kind of fair court or legal system could order them to stop using it just because software previously deployed on these boxes was infringing? One would think that this kind of decision should require another trial that will give TiVo and Dish an opportunity to present their arguments just like they did originally.
> Another question is for TiVo shareholder here. Why are you so anxious to see Dish fined for contempt? Even if court slaps Dish with contempt fine, TiVo will not see a dime of these money - it will go to government anyhow. If anything, it will make it clear that TiVo will never get licensing deal with Dish and that Dish will pay fine rather than extortion money. Since monetary award and potential licensing deal are already factored in a TiVo stock price, TiVo stock will tank on this kind of news.


I'm not sure what I think about the change of software.

To me- dish could have just went to the court the day after they rolled out the new software (it was some time ago- before the date the injunction took effect- no?)- and said- 'hey, we changed the software, we think it's vastly different so doesn't infringe, is it square with you if we move along?' - I guess maybe courts dont work that way but would have been cleanest no? Anyway since they didn't do that, I dont know what is right and what is wrong to do here. Both sides have a point.

That said- you asked why people want a fine. Actually you asked why stockholders want dish to be fined- and I have no idea why you link the 2. I dont own either company's stock. Never have. Probably never will. Not a big individual stock buying sort of guy.

BUT I would LOVE to see DISH get nailed with a huge fine. Actually I'd prefer if Ergen and his lawyers where sent to jail without a fine. The reason for me, is I think that Ergen and his Dish network have shown themselves to be scummy. They abuse the courts as much as they can. I believe they "game" the system just because they can, not because they think they are right. So I think the guy is scum and such scum should pay for it. His lawyers to me represent what people hate about lawyers- and so they too should get punished.

Some of that is my optinion- but much of it is public record. Dish's hometown Denver newspaper(s) have run stories about the nasty legal practices. And dish's lawyers have been admonished or found in contempt by the courts on more then one occasion.

Not sure if my oppinions would change at all if I owned either stock or the other, but I would like to think money wouldn't color my decision of what's right and what's wrong. That's exactly what I accuse Ergen and his lawyers of doing and I find it repulsive.

just my 2 cents.


----------



## HiDefGator

Greg Bimson said:


> If you are found infringing, you'd better let the court in on your plans for avoiding both infringement and the standing injunction. You do not spring on the court after the injunction is in full force and effect that you have new software, as it needs time to be evaluated.


Didn't they do that at the first possible opportunity? Until the hardware claims were thrown out there was no point in bringing up the software. It is clear from their letter that they had already given Tivo the software to look at long before they sent their letter to the court. They even publicly sent out a letter to their dealers stating exactly what they had done. How could they have done it sooner than they did?


----------



## HiDefGator

MichaelK said:


> BUT I would LOVE to see DISH get nailed with a huge fine. Actually I'd prefer if Ergen and his lawyers where sent to jail without a fine. The reason for me, is I think that Ergen and his Dish network have shown themselves to be scummy. They abuse the courts as much as they can. I believe they "game" the system just because they can, not because they think they are right. So I think the guy is scum and such scum should pay for it. His lawyers to me represent what people hate about lawyers- and so they too should get punished.


I agree with everything you said except I don't see where they deserve a fine. Unfortunately acting scummy is not illegal. Courts don't fine people for behaving badly or doing any of the things we both agree they have done.


----------



## HiDefGator

And just for the record I'm a Tivo shareholder. I have never owned Dish nor used their service.


----------



## gonzotek

Greg Bimson said:


> But a DVR is a leisure activity. It is not life or death.


Indeed, Judge Folsom explicitly stated this in his injunction order:
http://www.fr.com/news/articledetail.cfm?articleid=611


> Finally, the Court found the public interest "would not be disserved by a permanent injunction" since the public has an interest in maintaining a strong patent system, and the infringing products are used for entertainment, not public health or a similar key interest.


----------



## HiDefGator

You are both missing the point. It isn't reasonable to assume that the Judge won't care why they aren't complying. It certainly isn't in the public interest to force E* into a lifetime licensing contract with Tivo if their DVR's no longer infringe any Tivo patents. What harm does it do to leave them on while the software is put to a jury? If the jury rules infringing then E* will owe for the entire time it took to get there.


----------



## gonzotek

HiDefGator said:


> You are both missing the point. It isn't reasonable to assume that the Judge won't care why they aren't complying. It certainly isn't in the public interest to force E* into a lifetime licensing contract with Tivo if their DVR's no longer infringe any Tivo patents. What harm does it do to leave them on while the software is put to a jury? If the jury rules infringing then E* will owe for the entire time it took to get there.


I don't believe I suggested they be forced into a lifetime licensing contract.


----------



## HiDefGator

gonzotek said:


> I don't believe I suggested they be forced into a lifetime licensing contract.


That is the exact result most are hoping for by demanding that Echostar be forced to shut down their DVR's.


----------



## GoHokies!

HiDefGator said:


> You are both missing the point. It isn't reasonable to assume that the Judge won't care why they aren't complying.


IF E* hadn't asked to be allowed to change the software and been denied by the judge when the injunction was written, you'd have a point. Since they did, and the judge explicitly crafted the injunction to prevent E* from doing exactly this, it's pretty reasonable to assume that the judge is going to drop the hammer.

To use your power cord example, if E* had said "can't we just mail out a new power cord?" and the judge said "no", it would be ridiculous for E* to say "we mailed out a new power cord" at this point (which is exactly what the Judge said not to do).


----------



## Curtis

gonzotek said:


> I don't believe I suggested they be forced into a lifetime licensing contract.





HiDefGator said:


> That is the exact result most are hoping for by demanding that Echostar be forced to shut down their DVR's.


Judge Folsom:



> Although the injunction will likely result in some degree of customer loss and will impact Defendants' ability to compete in the market, Defendants will not be irreparably harmed. Again, Defendants' core business is not the supply of DVRs. Defendants have not demonstrated that an injunction on the infringing products would have a severe financial impact on their core business or will lead to loss of employees. Defendants' authorized retailers will still be able to sell and service Defendants' non-infringing products. Conversely, absent a stay, Plaintiff faces ongoing irreparable injury as detailed above.


----------



## MichaelK

ZeoTiVo said:


> they did not forget. If they had put the injunction before the Fed court they would have no wiggle room now to make things grind along slowly.
> 
> now there has to be a meeting, then a contempt hearing - THEN they appeal the injunction. A much better time waster than lumping it into the original appeal.


ahhh- thanks for 'splaining.

I doubted they 'forgot' too.

your explaination makes perfect sense.

Question i guess for the lawyers here becomes- IF dish gets told shut 'em down and then they appeal based on the wording of the order. How does the appeals court take it that they already argued the software swap initially in front of the judge when he made the order in the first place then went to appeal and never complained about it then?

Is it the sort of thing where you can keep going back to appeal one point at a time or are you supposed to get all your thoughts together at once for a single appeal to not waste court time?

Not a lawyer so curious what the rules are here.

I guess DISH would also argue that since the original appeal changed the scope of infringement that it's a whole new ball game- but are they required to stand up and say that ASAP or can they just sit around till the time suits them to make the arguement?


----------



## GoHokies!

HiDefGator said:


> That is the exact result most are hoping for by demanding that Echostar be forced to shut down their DVR's.


That's what most of us are hoping for, but the courts are just trying to force a licensing agreement of any kind.


----------



## Greg Bimson

HiDefGator said:


> Didn't they do that at the first possible opportunity? Until the hardware claims were thrown out there was no point in bringing up the software. It is clear from their letter that they had already given Tivo the software to look at long before they sent their letter to the court. They even publicly sent out a letter to their dealers stating exactly what they had done. How could they have done it sooner than they did?


The new software was filed as a patent application back in August, 2006. In other words, within two weeks of Judge Folsom signing an injunction order (8 September, 2006), DISH had already planned to go this route.

When was the first announcement that DISH/SATS was going to a new version of software? The moment the Court of Appeals upheld the software but reversed the hardware claims of the verdict, back on 31 January, 2008. That was because DISH/SATS issued a press release "celebrating their victory" and then stated they worked around the software patent and that all DVR's are safe because of the software.

DISH/SATS was working on that before they ever filed their briefs to the Court of Appeals. One would think DISH/SATS may have wanted to make mention of it. It is the Court of Appeals which stayed Judge Folsom's injunction. If there were problems with the injunction being incorrect, one would think DISH/SATS would have brought them up at the Court of Appeals, since once the Court of Appeals dissolves their stay, the injunction goes into full force and effect without anyone lifting a finger. (Normally in suits where an injunction is given as relief, the trial court judge will stay the injunction pending appeal. Not this time.)


----------



## bidderman9

Does the date that the injunction actually take effect have any impact on whether Echo* is compliant or not? Let's say for example that it was determined that the injunction actually took effect sooner than what Echo* claimed. Closer to the TIVO date. What if Echo* had not pushed the new software out at the time the injunction took effect. After all there are discrepancies as to the actual injunction date. Wouldn't they in essence have violated the injunction even in the best case scenario? Isn't that why Echo* is claiming such a late injunction date? It fits better into their time line. With out it, I think it causes them problems.


----------



## Greg Bimson

ZeoTiVo said:


> now there has to be a meeting, then a contempt hearing - THEN they appeal the injunction. A much better time waster than lumping it into the original appeal.


It does waste time, but it does not afford DISH/SATS to launch a full attack on injunction at all. It is what it is, and it is too late to attack the injunction.

Now if you mean that DISH/SATS can appeal the contempt ruling, that is true. But I suspect that will get them nowhere fast, as the contempt ruling will go to the same appeals court which overturned the hardware verdict because of a "literal definition".


----------



## Greg Bimson

bidderman9 said:


> Does the date that the injunction actually take effect have any impact on whether Echo* is compliant or not?


I think, from both briefs, that once the Court of Appeals lifted the stay of the injunction on 18 April 2008, that it may have only taken a few days before the clock ran out on DISH/SATS to disable the DVR's.

And DISH/SATS didn't argue that they were still within the 30 days they had to disable the DVR's, so I don't believe the countdown clock was part of the problem.


----------



## HiDefGator

Greg,

I don't disagree with you. I suspect E* believes the judge refused to allow a software download as a solution back during the middle of the trial because it would have confused the situation and provided no obvious benefit to either party. They probably don't see that as the case any longer.


----------



## MichaelK

HiDefGator said:


> Didn't they do that at the first possible opportunity? Until the hardware claims were thrown out there was no point in bringing up the software. It is clear from their letter that they had already given Tivo the software to look at long before they sent their letter to the court. They even publicly sent out a letter to their dealers stating exactly what they had done. How could they have done it sooner than they did?


wouldn't sooner be in relation to telling the judge? the person that wrote the injunction? the person that will decide if they infringed?

Wouldn't the rational thing to do be to copy him on their correspondence to tivo and notify him that they intend to use the new software as a way to avoid the injunction BEFORE the injunction kicked in?

they're just gaming the system to stall as long as possible. It's their standard MO in court.


----------



## segaily

TexasAg said:


> The controlling law: An accused infringer is "entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device."
> 
> Note the word "entitled".


The intent of The case law quoted does appear to clearly give echo the right to modify a product to make it not infringe and then sell it.

My question would be was the law intended to say they have the right to change a product they already sold that infringed to make it no longer count as infringing. Part of the harm to TiVo was that potentially TiVo lost customers to echo when echo sold infringing product. Going forward echo selling non infringing product and TiVo would be on an even playing field. Allowing echo to continue to use products that were sold while infringing would allow them to maintain the advantage they received while infringing causing potential ongoing harm to TiVo.


----------



## CharlesH

I understand that the discussion has been about the injunction, but when is E* going to have to pay up/settle for the damages that were sustained by the appeals court? Or are we waiting for some legal step on that front?


----------



## Greg Bimson

CharlesH said:


> I understand that the discussion has been about the injunction, but when is E* going to have to pay up/settle for the damages that were sustained by the appeals court? Or are we waiting for some legal step on that front?


Because DISH/SATS intends to file a petition for a writ of certoriari to the Supreme Court regarding the judgment, technically the case is still on appeal, and the monies due to TiVo will not be paid until 1) the appeal runs dry (SCOTUS refuses to hear the case or SCOTUS hears the case and finds in favor of TiVo), 2) DISH/SATS wins, or 3) DISH/SATS lets the time to file the petition expire.


----------



## MichaelK

HiDefGator said:


> You are both missing the point. It isn't reasonable to assume that the Judge won't care why they aren't complying. It certainly isn't in the public interest to force E* into a lifetime licensing contract with Tivo if their DVR's no longer infringe any Tivo patents. What harm does it do to leave them on while the software is put to a jury? If the jury rules infringing then E* will owe for the entire time it took to get there.


Not a lawyer and the real lawyers will have to speak up- but my understanding is a judge doesn't give a crap as to why you are not complying if you could have complied. If Dish successfully argues that the fresh software is a new item and therefore not infringeing then they are complying. So the argument is are they complying or not. - I wont take a stand there- seems two intelligent opposing points of view have been presented and I can't figure it out myself.

If they are not in compliance then I think a judge basically gets to do whatever he/she wants to force compliance- lawyers will have to speak up but I think fines, jailtime, or censure proceedings for the company, officers, and lawyers involved are all fair game if he wants. Ergen has the switch to turn the DVR off, if he chooses not to shut them off when there is a legal injunction in force then I think he or anyone else under him that the judge decides is the reason can get locked up and put in jail untill such time that the things get turned off. So Ergen doesn't in my mind have all the power in the world here. It's like government employees on strike- it's illegal (at least certain jobs)- the judge orders everyone back to work if they strike, he doesn't go to each persons house dress them and put them in his car and drive them to work. The judge finds the union head and sends them to jail, he fines the union a painfull amount of money each day, eventually he destroys the union and fires all the workers. So just because a Judge can't physically do something doesn't mean he/she can't force the hand that can do it.

again not a lawyer but the way I understand is part of the injunction process is he has to figure the damage caused to tivo by allowing this to go on. He already has determined that tivo is being damaged by Dish's action. He has said the public's need for a dvr doesn't trump that. So for all he cares is dish shuts them down and has no dvr's and there's no harm to Tivo and it's not really a big. (Again there's more complex legal things going on then just that- is it colorably differnt? is a new trial warrented? etc, etc)


----------



## Curtis

HiDefGator said:


> Greg,
> 
> I don't disagree with you. I suspect E* believes the judge refused to allow a software download as a solution back during the middle of the trial because it would have confused the situation and provided no obvious benefit to either party. They probably don't see that as the case any longer.


The injunction came after the trial.


----------



## MichaelK

HiDefGator said:


> Greg,
> 
> I don't disagree with you. I suspect E* believes the judge refused to allow a software download as a solution back during the middle of the trial because it would have confused the situation and provided no obvious benefit to either party. They probably don't see that as the case any longer.


can one of the lawyers answer-

when the things changed (eg when the appeals court made this all about software and not hardware also)- should Dish then have said- "hey the injunction wording stinks now"?

or is this the proper sequence of events from a court rules sort of thing?

(this squence being wait till after the injunction took hold then argue that the injunction is badly word)

thanks


----------



## ZeoTiVo

Greg Bimson said:


> Now if you mean that DISH/SATS can appeal the contempt ruling, that is true. But I suspect that will get them nowhere fast,


it will get them nowhere _slow_ which has been their strategy all along


----------



## MichaelK

segaily said:


> The intent of The case law quoted does appear to clearly give echo the right to modify a product to make it not infringe and then sell it.
> 
> My question would be was the law intended to say they have the right to change a product they already sold that infringed to make it no longer count as infringing. Part of the harm to TiVo was that potentially TiVo lost customers to echo when echo sold infringing product. Going forward echo selling non infringing product and TiVo would be on an even playing field. Allowing echo to continue to use products that were sold while infringing would allow them to maintain the advantage they received while infringing causing potential ongoing harm to TiVo.


i dont think that matters- the damages assessed so far I beleive were dupposed to compensate dish for the past damage to tivo.

It doesn't matter how much DISH makes over and above that as long as tivo was made "whole" by the damages already. I think they amount of the damages is not under dispute (except for at what date the infringement stopped).

lawyers feel free to correct.


----------



## Curtis

MichaelK said:


> i dont think that matters- the damages assessed so far I beleive were dupposed to compensate dish for the past damage to tivo.
> 
> It doesn't matter how much DISH makes over and above that as long as tivo was made "whole" by the damages already. I think they amount of the damages is not under dispute (except for at what date the infringement stopped).
> 
> lawyers feel free to correct.


The damages were calculated through 2006 based on lost sales and lost royalties to that point only. Lost sales and lost royalties have continued to accumulate.


----------



## ZeoTiVo

MichaelK said:


> If Dish successfully argues that the fresh software is a new item and therefore not infringeing
> 
> then they are complying.


actually the question of whether just modding the software to non-infringing puts them in compliance is being debated here and very likely will be TiVo inc.'s lead argument in the meeting on May 30th


----------



## MichaelK

Curtis said:


> The damages were calculated through 2006 based on lost sales and lost royalties to that point only. Lost sales and lost royalties have continued to accumulate.


yes but isn't there a per box per day rate already aggreed to someplace. So the relevent factor is how many boxes for how many days after the original 2006 numbers?


----------



## MichaelK

ZeoTiVo said:


> actually the question of whether just modding the software to non-infringing puts them in compliance is being debated here and very likely will be TiVo inc.'s lead argument in the meeting on May 30th


That's exactly what I was trying to say- apparently didn't come out so well- laughing. "English for engineers" strikes again. 

the whole arguement seems to be does changing the software make them in compliance with the injunction or not.

there is no they are not in compliance but they have a good reason. Either they are complying because the software was changed before the injunction date and it is colorably different. Or that's not an acceptable thing to do becasue the judge specifically didn't write the injunction that way.

at least that is what i'm understanding from the discussion.


----------



## Curtis

MichaelK said:


> yes but isn't there a per box per day rate already aggreed to someplace. So the relevent factor is how many boxes for how many days after the original 2006 numbers?


No.

TiVo:



> The Federal Circuit's recent decision mAmado v. Microsoft Corp.,
> 517 F.3d 1353, 1361-62 (Fed. Cir. 2008), makes clear that damages for infringement taking place after the injunction should be at a royalty rate higher than what the jury found to be an appropriate pre-verdict reasonable royalty. Id. at!362n.2. hi assessing post-verdict damages, the trial court must consider financial and economic information related to the change in the parties' bargaining positions and economic circumstances as a result of the determination of liability, as well as the evidence and arguments presented in connection with the granting of the injunction and the stay. Id. at 1362.


That still won't compensate TiVo for irreparable harm. Thast's why they call it "irreparable". There is no legal remedy for that except the injunction. That's what it's for.


----------



## MichaelK

Curtis said:


> No.
> 
> TiVo:


interesting.

thanks


----------



## segaily

MichaelK said:


> yes but isn't there a per box per day rate already aggreed to someplace. So the relevent factor is how many boxes for how many days after the original 2006 numbers?


My point was that the lost sales will be ongoing as long as those boxes are operational. Even if they no longer infringe they became a lost sale the day they were sold and making them no longer infringe does not change that fact.

If Echo had not infringed there product might not have gone on sale for potentially several more years during which time people might have purchased TiVos. The only way that I can see for TiVo to be made whole are for Echo to pay TiVo a license fee or to shut off the DVRs.


----------



## Greg Bimson

MichaelK said:


> when the things changed (eg when the appeals court made this all about software and not hardware also)- should Dish then have said- "hey the injunction wording stinks now"?


It was one of those predictability tests...

One briefs the Court of Appeals with any issue that the court may take up, and also briefs the court with what should happen to certain items if the outcome is changed.

If DISH/SATS didn't like the wording of the injunction, they should have asked the Court of Appeals for modification on several grounds, such as it was too stringent, or what should happen if part of the verdict is overturned. DISH/SATS definitely should have asked for something, as trial court judge did not stay the injunction on appeal. That meant once the stay given by the Court of Appeals dissolved, the injunction would go into full force and effect without anyone's help.

By leaving the injunction alone, DISH/SATS is now fighting at windmills of their own making.


----------



## ZeoTiVo

MichaelK said:


> the whole arguement seems to be does changing the software make them in compliance with the injunction or not.


there it is in plain English :up:

and if that fails - then the next arg for TiVo is the software is not colorably different anyway


----------



## MichaelK

ZeoTiVo said:


> there it is in plain English :up:
> 
> ...


seriously I really had "english for engineers" - got the same 3 credits as the liberal arts people with their fancy classes. But for us it was like "clap clap- horray you wrote your name at the top of the paper right were the heading says it should go- that's good for an A". 

I guess turnabout is fair play because my sister had "calculus for liberal arts" which I think many of us here would call algebra or maybe advanced counting sticks- LOL 

I'm amazed by you folks with the technology blogs that can do both english and science!


----------



## TexasAg

MichaelK said:


> the whole arguement seems to be does changing the software make them in compliance with the injunction or not.
> 
> there is no they are not in compliance but they have a good reason. Either they are complying because the software was changed before the injunction date and it is colorably different. Or that's not an acceptable thing to do becasue the judge specifically didn't write the injunction that way.


From what I've read, Echo's argument is that they did comply with the order. They shut down the DVR functionality on all of their DVRs for a short time, downloaded new software onto those boxes, then reactivated the DVR functionality with the new software. Their argument here is basically that the products currently being operated by Echo customers are not, in fact, the same products currently enjoined. While the model numbers on the physical boxes may be the same, the software is different than what was found to infringe.

They could argue that Echo could have shipped new DVRs (say model KISSOFFJUDGE1) to every customer with the enjoined DVRs, and Echo couldn't be held in contempt if the new DVRs had new "more than colorably different" software. If you agree that Echo could have shipped new DVRs with the new software to customers, the court must agree that Echo could download new software to existing DVRs since there is no valid finding of infringement for the hardware of the existing DVRs.

I wouldn't be surprised to see Echo file a motion at some point to modify the injunction if Tivo pushes the issue. Any refusal to modify the injunction is then appealable, especially if the judge is refusing to allow Echo to modify the software on existing boxes with colorably different software (something Echo is "entitled" to do).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## kido

TexasAg said:


> From what I've read, Echo's argument is that they did comply with the order. They shut down the DVR functionality on all of their DVRs for a short time, downloaded new software onto those boxes, then reactivated the DVR functionality with the new software. Their argument here is basically that the products currently being operated by Echo customers are not, in fact, the same products currently enjoined. While the model numbers on the physical boxes may be the same, the software is different than what was found to infringe.


From the injunction:


> The DVR functionality, i.e., disable all storage to andplayback from a hard disk drive of television data) shall not be enabled in any new placements ofthe Infringing Products.


if you argue that downloading software is enough to make enjoined dvrs not the same product, then it falls into a new placement.

btw, "Infringing Products" is defined in the injunction as "Defendants' following DVR receivers (collectively the "Infringing Products"): DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942" with no mention of software version anywhere.


----------



## TexasAg

kido said:


> if you argue that downloading software is enough to make enjoined dvrs not the same product, then it falls into a new placement.


Except the new software is not the same as that found to infringe. As long as it is "more than colorably different" from the old software, it doesn't matter whether Echo sold a new DVR model with that software in it or downloaded it to existing DVRs.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## steve614

TexasAg said:


> You're free to disagree. We're not talking about criminal proceedings or bail jumping. We're talking about an area of the law where the cases specifically allow an infringer to produce and release a modified device that is "more than colorably different" without being cited for contempt of an injunction.


I do not disagree that there is a difference on how law is applied between criminal/civil/patent cases.
I just used that analogy to express what I think E* is trying to do and my opinion of said tactics.
Thanks to the plain english postso), I think I'm getting a feel for what's going on in this case.

Good debate, guys. 


MichaelK said:


> ...(about DISH/ECHO*)...They abuse the courts as much as they can. I believe they "game" the system just because they can, not because they think they are right.


And that's with the court...just think what they're doing to customers.


HiDefGator said:


> That is the exact result most are hoping for by demanding that Echostar be forced to shut down their DVR's.


Instead of "shut down their DVR's" wouldn't it be better to say "disable the DVR functionallity"?
I guess my question is, are the DVR "boxes" in question able to recieve and display a satelite signal _without_ having to write to the HD?


----------



## ZeoTiVo

TexasAg said:


> Except the new software is not the same as that found to infringe. As long as it is "more than colorably different" from the old software, it doesn't matter whether Echo sold a new DVR model with that software in it or downloaded it to existing DVRs.


you keep saying that as if it rebuts the other side of the argument completely. Since the other side is the injunction language did not include a remedy of modifying the software so that does not satisfy the injunction then it is an impass and we all wait for the results on the 30th

oh - and no one in the forum knows if the new software is colorably different or infringing or not - so saying it is not the same now is a bit presumptuous as well


----------



## bidderman9

Does anybody else find the phrase "colorably different" kinda strange.  I didn't know software had a color. Other than possibly black and white.


----------



## steve614

bidderman9 said:


> Does anybody else find the phrase "colorably different" kinda strange.


Well, Spell Check wants to change it to "color ably".


----------



## Sisson

Some posters say "colorably different" and some always write, "MORE THAN colorably different." I think the "more than" is critical. In other words, one can't just slap on a coat of paint and say, "It's different." In order not to infringe the new software must be MORE THAN just colorably different.
DS


----------



## sbiller

Any clue how we will hear the results of the Friday status conference?


----------



## TexasAg

ZeoTiVo said:


> you keep saying that as if it rebuts the other side of the argument completely. Since the other side is the injunction language did not include a remedy of modifying the software so that does not satisfy the injunction then it is an impass and we all wait for the results on the 30th


That is the standard for modified products, which Echo is arguing its DVRs currently are.



ZeoTiVo said:


> oh - and no one in the forum knows if the new software is colorably different or infringing or not - so saying it is not the same now is a bit presumptuous as well


I've tried not to say in my posts that the new software is certainly "more than colorably different." I usually have tried to say if it is, then... However, I think I can safely say it is not the same since even Tivo calls it "modified software." Tivo even admits that the "more than colorably different" standard applies to the modified software.

The issue basically boils down to whether Echo gets in trouble for modifying the software without keeping the DVR functionality shut down and without requesting court permission, even if the new software is "more than colorably different" and makes the devices possibly "non-infringing." I say they don't since infringers are entitled to release "more than colorably different" products without being cited for contempt.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## MichaelK

TexasAg said:


> ...
> 
> The issue basically boils down to whether Echo gets in trouble for modifying the software without keeping the DVR functionality shut down and without requesting court permission, even if the new software is "more than colorably different" and makes the devices possibly "non-infringing."


ding ding ding

we have a winner.

kidding aside- i think that sums it up nicely.


----------



## TexasAg

MichaelK said:


> ding ding ding
> 
> we have a winner.
> 
> kidding aside- i think that sums it up nicely.


Thanks. Amid my repetition, I may have said something useful.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## GoHokies!

MichaelK said:


> ding ding ding
> 
> we have a winner.
> 
> kidding aside- i think that sums it up nicely.


Not quite. Corrected Version:



TexasAg said:


> The issue basically boils down to whether Echo gets in trouble for modifying the software without keeping the DVR functionality shut down and without after requesting court permission *and being denied*, even if the new software is "more than colorably different" and makes the devices possibly "non-infringing."


Your (TexasAg) posts miss the point that E* asked permission to do that and were told by the judge in no uncertain terms "Don't do that". If that isn't contempt, I don't know what is - no judge likes being defied, and Judge Folsom has already shown no toleration for E*'s shenanigans.


----------



## AlexG883

GoHokies! said:


> Not quite. Corrected Version:
> 
> Your (TexasAg) posts miss the point that E* asked permission to do that and were told by the judge in no uncertain terms "Don't do that". If that isn't contempt, I don't know what is - no judge likes being defied, and Judge Folsom has already shown no toleration for E*'s shenanigans.


I agree that your revised version of TexasAg's post makes an important point. Can you (or anyone?) link to the court transcript where this request and denial was made.


----------



## AlexG883

Also, will a transcript of the status meeting this Friday be released?


----------



## 20TIL6

Being reported on "other" sites that Dish has removed the tagline "Better than TiVo" from their website.


----------



## timckelley

Only one day until Dish is found in contempt and gets onerously punished for it.


----------



## 20TIL6

timckelley said:


> Only one day until Dish is found in contempt and gets onerously punished for it.


I'm with you Tim. And GO 'HORNS! (late 80's-early 90's occasional attendee of UT classes) - can't really call myself an alum.


----------



## rainwater

20TIL6 said:


> Being reported on "other" sites that Dish has removed the tagline "Better than TiVo" from their website.


It was also removed from their commercials I saw over the weekend.


----------



## NotVeryWitty

20TIL6 said:


> Being reported on "other" sites that Dish has removed the tagline "Better than TiVo" from their website.


I wonder if this is part of a settlement in the works...


----------



## 20TIL6

NotVeryWitty said:


> I wonder if this is part of a settlement in the works...


Maybe. Or maybe a disabled DVR due to an enforced injunction is in fact NOT "Better than TiVo".

I find the timing interesting though. With tomorrow being the "Come to Jesus meeting" with the judge who originally handed down the injunction.

I know that TiVo mentioned the ad slogan in their filing on the 16th.


----------



## TexasAg

timckelley said:


> Only one day until Dish is found in contempt and gets onerously punished for it.


The meeting tomorrow is a status meeting, not a contempt hearing. Sorry, no contempt citations tomorrow.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## timckelley

Darn.


----------



## bidderman9

You just burst my bubble ......


----------



## bidderman9

Did you see one of the TIVO board members died unexpectedly? Hmmm.... Conspiracy theories abound .....


http://biz.yahoo.com/e/080529/tivo8-k.html


----------



## timckelley

With Dish now elevating their crimes from patent infringement to murder, I say they should now get the death penalty.


----------



## bidderman9

timckelley said:


> Wish Dish now elevating their crimes from patent infringement to murder, I say they should now get the death penalty.


After paying off their penalties of course.


----------



## kido

from another message board:


guam2009lt said:


> Judge set contempt hearing ignoring his injunction for September 4.
> Not dealing with the "work around"- thats shelved
> Tivo gets limited discovery for enhanced damages, the boxes since the trial and higher damages per box will be examined


----------



## timckelley

We have to wait all the way until September 4th?!?!?!?!?!?!?!?!?!?!? 

This is dragging on a looooooooong time.


----------



## kido

reports say tivo's lawyers pushed for an earlier date, but echostar's lawyers said they couldn't be ready until then. they also say the status meeting took all of 20 minutes. transcripts should be available later today or monday.


----------



## timckelley

kido said:


> reports say tivo's lawyers pushed for an earlier date, but echostar's lawyers said they couldn't be ready until then.


Typical Echostar trick.


----------



## ChuckyBox

timckelley said:


> Typical Echostar trick.


If the report is to be believed, they're pretty much out of tricks now. They can settle before the contempt hearing starts, or they can disable their DVRs.


----------



## 20TIL6

timckelley said:


> Typical Echostar trick.


Tim, the judge is basically giving E* 90days to reach a settlement with TiVo.

TiVo is completely in the driver's seat in this. If E* does not agree to a settlement within that 90days, they enter into a contempt hearing over their non-compliance of the injunction.

And most importantly, E* will not be able to introduce their work-around as part of their defense. Much to their dismay, and perhaps to the dismay of our neighbor in College Station.

Oh, and TiVo is entitled to discovery of enhanced damages during this 90day period.

So in all, E* is being shown that not settling will bring a lot more pain. I personally think we see a settlement sooner than 90days. Simply because damages are continuing to mount for E*, and there are no options any longer for them to get out from under them.


----------



## HiDefGator

You do realize that at the contempt hearing E* will argue they cannot be in contempt because they upgraded the software. When the judge rules against them, they will appeal and this case will go on and on and on....


----------



## 20TIL6

HiDefGator said:


> You do realize that at the contempt hearing E* will argue they cannot be in contempt because they upgraded the software. When the judge rules against them, they will appeal and this case will go on and on and on....


Nope, I don't realize that at all. The contempt is for non-compliance of a court ruling. Nothing to do with TiVo, or software, or anything else.

You do realize that during the original trial, E* tried to introduce motions that would have allowed for just what you are describing. And they were denied. Seems that the Judge in this case has a bit of experience in the matters of patent infringement.

on and on and on..... That's funny. Nope, this ends within 90 days.


----------



## HiDefGator

20TIL6 said:


> Nope, this ends within 90 days.


I'll book mark that and we'll revisit in 91 days.


----------



## 20TIL6

HiDefGator said:


> I'll book mark that and we'll revisit in 91 days.


not me =>


----------



## ZeoTiVo

kido said:


> from another message board:
> 
> 
> guam2009lt said:
> 
> 
> 
> Judge set contempt hearing ignoring his injunction for September 4.
> *Not dealing with the "work around"- thats shelved*Tivo gets limited discovery for enhanced damages, the boxes since the trial and higher damages per box will be examined
Click to expand...

Good news - this is exactly what I had been hoping for. :up:

The injunction was written as "turn off DVRs" the language allowing for software mod to comply with injunction was denied 
and the Judge has confirmed all that in a 20 minute status meeting. :up::up::up:
Hopefully he told DISH lawyers to shut up adn just give him a date they would be ready for the contempt hearing.


----------



## Langree

ZeoTiVo said:


> Good news - this is exactly what I had been hoping for. :up:
> 
> The injunction was written as "turn off DVRs" the language allowing for software mod to comply with injunction was denied
> and the Judge has confirmed all that in a 20 minute status meeting. :up::up::up:
> Hopefully he told DISH lawyers to shut up adn just give him a date they would be ready for the contempt hearing.


correct decision in my mind, Dish's decision makers in this need to be muzzled.


----------



## timckelley

Thank you, TCF law wizards for interpreting this for us lay people. This can't feel good for Echo.  It must smart pretty badly for them. 

When they come crawling to the negotiating table, after all they've put TiVo through, that should feel sweet for TiVo Corp.


----------



## Curtis

Link

Friday May 30, 2:31 pm ET

ENGLEWOOD, Colo., May 30, 2008 (PRIME NEWSWIRE) -- DISH Network Corporation and EchoStar Corporation (NasdaqGS:SATS - News) issued the following statement regarding Tivo:

``Today, DISH Network and EchoStar filed a lawsuit against Tivo asking a Delaware court to find that our new DVR software does not infringe Tivo's '389 patent. The lawsuit is in response to Tivo's continued public statements that our new DVR software infringes.

``This action is independent of Tivo's anticipated motion for contempt in the Eastern District of Texas. We believe any contempt motion by Tivo should be denied because we are in full compliance with the injunction.''


----------



## morac

I wonder how long the September 4th hearing will last. September basically starts the Fall TV season which has to be the worst time of the year to have to shut down DVR functionality. As opposed to now, when nothing son.


----------



## Langree

Curtis said:


> Link
> 
> Friday May 30, 2:31 pm ET
> 
> ENGLEWOOD, Colo., May 30, 2008 (PRIME NEWSWIRE) -- DISH Network Corporation and EchoStar Corporation (NasdaqGS:SATS - News) issued the following statement regarding Tivo:
> 
> ``Today, DISH Network and EchoStar filed a lawsuit against Tivo asking a Delaware court to find that our new DVR software does not infringe Tivo's '389 patent. The lawsuit is in response to Tivo's continued public statements that our new DVR software infringes.
> 
> ``This action is independent of Tivo's anticipated motion for contempt in the Eastern District of Texas. We believe any contempt motion by Tivo should be denied because we are in full compliance with the injunction.''


Wow, Dish just keeps digging a bigger hole.


----------



## timckelley

How can there be two lawsuits going on at the same time, basically covering the same subject? Can they do that?

Echo is in complete denial. They just need to be sentenced, and the sentence enforced, and put out of their misery.


----------



## morac

Curtis said:


> Today, DISH Network and EchoStar filed a lawsuit against Tivo asking a Delaware court to find that our new DVR software does not infringe Tivo's '389 patent. The lawsuit is in response to Tivo's continued public statements that our new DVR software infringes.


Why choose Delaware?

The only reason I can think of is that maybe the court system there isn't that backed up and they hope they can get to trial before September 4th.


----------



## timckelley

What happens if Delaware says they don't infringe but Judge Folsom says they do? This procedure seems irregular to me. They shouldn't be able to switch courts when they first one doesn't go the way they like. If you lose, you pay or appeal.

I thought their only recourse was supposed to be the Supreme Court.


----------



## Langree

morac said:


> Why choose Delaware?
> 
> The only reason I can think of is that maybe the court system there isn't that backed up and they hope they can get to trial before September 4th.


But wouldn't, and shouldn't a Delaware judge not want to overstep until the Texas judge makes a ruling?


----------



## dswallow

timckelley said:


> What happens if Delaware says they don't infringe but Judge Folsom says they do? This procedure seems irregular to me. They shouldn't be able to switch courts when they first one doesn't go the way they like. If you lose, you pay or appeal.
> 
> I thought their only recourse was supposed to be the Supreme Court.


I would think that at some preliminary hearing in the Delaware court TiVo would make a motion that the correct venue is the Federal court in Texas that's already hearing patent infringement issues in the case.

And if the Delaware court decided to go ahead anyway, no matter what the Delaware court were to do, it just wouldn't affect what the Federal Court would do anyway.


----------



## SCSIRAID

So does E*/D* think its libel for TiVo to state to the court that they believe E* is still infringing? Seems like it should be dismissed... summary judgement for TiVo... defer to Folsom's court.


----------



## timckelley

dswallow said:


> I would think that at some preliminary hearing in the Delaware court TiVo would make a motion that the correct venue is the Federal court in Texas that's already hearing patent infringement issues in the case.
> 
> And if the Delaware court decided to go ahead anyway, no matter what the Delaware court were to do, it just wouldn't affect what the Federal Court would do anyway.


So given all this, it makes me wonder what Dish's lawyers were thinking when they started this new lawsuit. Plus, Dish must be racking up a lot in legal fees at this point.


----------



## SCSIRAID

dswallow said:


> I would think that at some preliminary hearing in the Delaware court TiVo would make a motion that the correct venue is the Federal court in Texas that's already hearing patent infringement issues in the case.
> 
> And if the Delaware court decided to go ahead anyway, no matter what the Delaware court were to do, it just wouldn't affect what the Federal Court would do anyway.


Im still struggling with just what E* is stating that TiVo is doing and seeking remedy from with a lawsuit? 'TiVo publically saying E* is infringing'? Is this a libel/slander accusation? What is their claim?


----------



## SCSIRAID

dswallow said:


> I would think that at some preliminary hearing in the Delaware court TiVo would make a motion that the correct venue is the Federal court in Texas that's already hearing patent infringement issues in the case.
> 
> And if the Delaware court decided to go ahead anyway, no matter what the Delaware court were to do, it just wouldn't affect what the Federal Court would do anyway.


Im still struggling with just what E* is stating that TiVo is doing and seeking remedy from with a lawsuit? 'TiVo publically saying E* is infringing'? Is this a libel/slander accusation? What is their claim? Are they looking for affirmation of non-infringement? Is that a proper claim?


----------



## MichaelK

this is going to go on for another 3-4 years.

DISH is evil and manipulates the court system for the sake of it. 

THey had a pissing match with the big 4 networks about distant nets that went until the very end and DISH lost. If they weren't afriad of the big 4's lawyers, i dont see them being afriad of the team tivo can afford (no slight to them but the big 4 probably had 25 lawyers for everyone one that tivo is paying)


----------



## PaulS

SCSIRAID said:


> Im still struggling with just what E* is stating that TiVo is doing and seeking remedy from with a lawsuit? 'TiVo publically saying E* is infringing'? Is this a libel/slander accusation? What is their claim?





> The lawsuit is in response to Tivo's continued public statements that our new DVR software infringes.


They're upset that TiVo has publicly declared that they believe E*'s new software still infringes.

It's been so long now that I've forgotten.... What was the mechanism in the original trial by which the original E* code was deemed to be infringing ? Expert and/or indepedent witnesses, or something else ? Can someone please remind me ?


----------



## Mavrick22

And now VOOM HD Networks is suing dish for breach of contract for DIsh dropping the VOOM channels completely from the Dish channel lineup.


----------



## HiDefGator

Mavrick22 said:


> And now VOOM HD Networks is suing dish for breach of contract for DIsh dropping the VOOM channels completely from the Dish channel lineup.


I don't think that one will go far. My understanding is VOOM breached their contract.


----------



## ZeoTiVo

Curtis said:


> Link
> 
> Friday May 30, 2:31 pm ET
> 
> ENGLEWOOD, Colo., May 30, 2008 (PRIME NEWSWIRE) -- DISH Network Corporation and EchoStar Corporation (NasdaqGS:SATS - News) issued the following statement regarding Tivo:
> 
> ``Today, DISH Network and EchoStar filed a lawsuit against Tivo asking a Delaware court to find that our new DVR software does not infringe Tivo's '389 patent. The lawsuit is in response to Tivo's continued public statements that our new DVR software infringes.
> 
> ``This action is independent of Tivo's anticipated motion for contempt in the Eastern District of Texas. We believe any contempt motion by Tivo should be denied because we are in full compliance with the injunction.''


simply that Judge Folsom refused to even hear/talk about the software mods and it seems the "new" software is not to be part of the contempt hearing either.

So. DISH thinks it found a way to get some court to discuss the new software. It is of course very much in DISH's interets to get some official pronouncement on the new software NOT infringing.

Delaware is all about corportaions and corporate law so DISH most likely feels they will take on the Non-infringement/libel suit

IANAL so no idea what Delaware courts will do. I have never seen case where someone specifcally brought suit to more or less be found *not* guilty of something but that would seem standard fare in a libel case I guess; though I have no idea what kind of suit DISH brought.

The whole thing seems like pathetic last resort stupidity by DISH to me though.


----------



## davezatz

ZeoTiVo said:


> The whole thing seems like pathetic last resort stupidity by DISH to me though.


On the face it of, it all seems pretty crazy. The updated software probably doesn't infringe, but regarding the _original_ case at hand (Texas) it probably doesn't matter. Playing chicken is a dangerous game - before it came to this, they should have written TiVo a $150 million dollar check out of the court system and let them vet the new software. If I were on the board I'd be pissed at having wasted so much money and resources on this, and it could get ugly... We shall see. In a year or so.


----------



## ZeoTiVo

davezatz said:


> On the face it of, it all seems pretty crazy. The updated software probably doesn't infringe, but regarding the _original_ case at hand (Texas) it probably doesn't matter. Playing chicken is a dangerous game - before it came to this, they should have written TiVo a $150 million dollar check out of the court system and let them vet the new software. If I were on the board I'd be pissed at having wasted so much money and resources on this, and it could get ugly... We shall see. In a year or so.


I agree. to clarify it seems like a pathetic, stupid last resort to keep from making a deal. DISH might get a trail and win on the lawsuit being non-infrnging and TiVo would of course have to stop saying so. the hardware was only remanded back to the lower court adn TiVo could still pull that back out and really knock DISH for a loop if the hardware was found infringing and it stood up on appeal.

I have been wondering when stockholders would have enough of DISH's antics but they did put up with the local mess so this is not much different I guess.


----------



## Greg Bimson

DISH/SATS probably wants a declaratory ruling that their new software does not infringe, so that TiVo cannot try to sue for infringement. It is a defensive move.


----------



## stoneharry

HiDefGator said:


> You do realize that at the contempt hearing E* will argue they cannot be in contempt because they upgraded the software. When the judge rules against them, they will appeal and this case will go on and on and on....


The software issue was "shelved" so you are very wrong.


----------



## stoneharry

timckelley said:


> How can there be two lawsuits going on at the same time, basically covering the same subject? Can they do that?


It is not. The workaround issue was "shelved" by the court.


----------



## stoneharry

ZeoTiVo said:


> simply that Judge Folsom refused to even hear/talk about the software mods and it seems the "new" software is not to be part of the contempt hearing either


I believe that is the way the law works. He knows he cannot rule in the software mod issue without four to five more years of court trials. So to protect TIVO from further harm, the law allows DISH to get slammed hard, until such time that the lawsuit that DISH just filed, has had four to five years to run its course. Then *maybe *the decision will be reversed.


----------



## timckelley

Out of curiosity, there were people arguing opposite points these last few days, and it was pretty much agreed that by today's news, we'd know which of them would be having crow for dinner. I can't remember which TCFer(s) here is scheduled to be eating dark-feathered poultry about now.


----------



## timckelley

stoneharry said:


> I believe that is the way the law works. He knows he cannot rule in the software mod issue without four to five more years of court trials. So to protect TIVO from further harm, the law allows DISH to get slammed hard, until such time that the lawsuit that DISH just filed, has had four to five years to run its course. Then *maybe *the decision will be reversed.


So in the meantime, Echo has to settle with TiVO or it's DVRs will be shut down for the next 4 or 5 years? /fingers crossed hoping that's so


----------



## ChuckyBox

SCSIRAID said:


> Im still struggling with just what E* is stating that TiVo is doing and seeking remedy from with a lawsuit? 'TiVo publically saying E* is infringing'? Is this a libel/slander accusation? What is their claim? Are they looking for affirmation of non-infringement? Is that a proper claim?


In the existing suit, TiVo is suing EchoStar for infringing TiVo's patent. Now EchoStar is suing itself for not infringing TiVo's patent.

See? Simple.


----------



## jones07

HiDefGator said:


> I don't think that one will go far. My understanding is VOOM breached their contract.


Not according to Voom

https://iapps.courts.state.ny.us/fb...Hvperwu/YnhBZawVj7SutQ==&from=SearchDetailURL


----------



## usnret

So, will any monies have to change hands before the Delaware trial (if there is one)??


----------



## Greg Bimson

usnret said:


> So, will any monies have to change hands before the Delaware trial (if there is one)??


Regarding the damages, DISH/SATS has one final appeal, to SCOTUS. Until the appeal is either denied, accepted and denied, or accepted and reversed, no money has to be paid. If it is the last one, DISH/SATS has won, and won't pay a dime. There is a possibility that the window to appeal for a petition for writ of certoriari expires, but I think that's a ways out.


----------



## stoneharry

timckelley said:


> So in the meantime, Echo has to settle with TiVO or it's DVRs will be shut down for the next 4 or 5 years? /fingers crossed hoping that's so


Hard to tell exactly, but I do think that is the most likely outcome.


----------



## timckelley

stoneharry said:


> Hard to tell exactly, but I do think that is the most likely outcome.


In this case, TiVo should drag that case out as ruthlessly and as slooooowly as Echo has done with the current case. IOW, give them back their own medicine.


----------



## sbiller

See attached pdf. Need some interpretation from our legal experts. It appears at 10:12 something goes against E* but I can't make heads or tails of it. 

Thanks,
Sam


----------



## dswallow

ATTORNEY FOR PLAINTIFFS: Morgan Chu; Sam Baxter; Andrei Iancu
ATTORNEY FOR DEFENDANTS: Damon Young; John Pickett; Joe Patino; Harold McElhinny
LAW CLERK: Jennifer Orgeron
COURTROOM DEPUTY: Mel Martin
COURT REPORTER: Libby Crawford

STATUS CONFERENCE
May 30, 2008 @ 10:00 a.m.
OPEN: 9:53 ADJOURN: 10:17

9:53 ct opens; ct/ what remains to be undone; correspondence is part of the record;
9:53 Chu/ have some good news; have reached agreement on bill of costs;
9:53 ct/ discovery and time frame from plfs standpoint and then will hear from dft; 2 unresolved issues
9:54 Chu/ 1st issue if injunction has been violated;
9:55 ct/ what time period/ time frame and if discovery needed;
9:55 Chu/ responds; 2nd part of injunction question;
9:56 ct/ that need not be taken up until after ruling on initial issue re: injunction;
9:57 Chu/ accelerated briefing schedule
9:57 ct/ my schedule doesnt allow for two weeks it would be more like a couple of months; how much time to file motion a week, 10 days;
9:58 Chu/ 10 days;
9:58 McElhinny/ responds;
9:59 ct/ correct procedure; filing of motion might clarify that;
10:00 McElhiny/ one contempt motion;
10:01 ct/ damage issue;
10:01 McElhinny/ damage issue is very interesting;
10:01 ct/ discovery if any
10:02 McElhinny/ if mini-trial we would like discovery;
10:02 ct/ Paice order; would that arrangement be appropraite;
10:02 ptys agree that would be appropriate
10:03 ct/ re: injunction and Mr. McElhinny feels you dont need to do this in two bites;
10:03 Chu/ responds;
10:03 ct/ file motion within 10 days; no more than 25 pages; brief in connection with motion no more than 20 pages; response how long with normal response time; reply not to exceed 10 pages; if sur-reply you will need leave of court; potential date to hear this; it will be August to September before we can set this;
10:05 Chu/ dates that are good for me;
10:05 ct/ a date the week of August 25th, how does 8/26 or 27th;
10:06 Chu/ both dates are good
10:06 McElhinny/ could I have one more week;
10:07 ct/ how is Thursday, 9/4th; ptys agree; 10am; how much time might be needed;
10:07 Chu/ will not need witness; 30 mins each side should be fine;
10:07 McElhinny/ 2 issues;
10:07 ct/ approach; do you envision any more interrogatories;
10:08 Chu/ responds; for purpose of injunction we dont need further discovery, right now;
10:09 ct/ no additional discovery unless leave of court;
10:09 Chu/ separate issue; they have stated that they have swapped out boxes;
10:10 ct/ what do you think you need
10:10 Chu/ responds;
10:10 ct/ dont need discovery for hearing that we have set; no discovery until you request leave of court;
10:11 Chu/ responds;
10:11 ct/ in what form and how much;
10:11 Chu/ responds; basic documentation;
10:12 ct/ is this going to be addressed in motion;
10:12 Chu/ no
10:12 McElhinny/ this is what we dont want;
10:13 ct/ will look at correspondence and give some guidance; damages same process, what time period are we talking about for discovery;
10:14 Chu/ 45 days or so;
10:14 ct/ look at Paice order for roadmap and do scheduling order; within 14 days; what else needs attention; ct/ hearing on 9/4th how much time
10:14 McElhinny/ 30 mins;
10:15 ct/ 30 mins each side for hrg set 9/4th;
10:15 McElhinny/ repair of boxes; will file motion for clarification and can hear it on the same day;
10:15 Chu/ responds;
10:16 ct/ file that motion in same time period as motion for injunction; technical advisor for this phase of the case;
10:16 Chu/ dont feel we need one; strictly a legal question;
10:16 McElhinny/ agrees;
10:17 adjourned;


----------



## TexasAg

timckelley said:


> Out of curiosity, there were people arguing opposite points these last few days, and it was pretty much agreed that by today's news, we'd know which of them would be having crow for dinner.


Been working (can't earn a living posting here, after all).

The "notes" from today don't really match what I've heard about the hearing, so I'll have to assume that the mention of the upset judge and shelving the new software issue is correct. On second thought, the new software appears to have been only delayed until after 9/4, so it still could be an issue later on.

The thing with Delaware was unexpected, but probably planned well in advance. Echo didn't just go "Oh shoot, we lost in Texas, I know, let's file in Delaware!" Echo appears to have anticipated the judge not letting in the new software, so it preemptively filed a declaratory judgment action in a different court. We'll have to wait and see if Delaware takes it or kicks it back to Texas. If Tivo is forced to file a new lawsuit for the new software, the court in Delaware could keep the new suit (any new suit by Tivo would be filed after Echo's filing, so Delaware could keep it). Delaware might also have more favorable laws regarding corporate defamation or commercial disparagement (although I haven't looked into this, and I don't even know if this is part of the new lawsuit).

We'll also have to wait and see what happens with the contempt proceeding. Obviously, any ruling there is appealable, including the judge's refusal to consider the new software, so this might not be resolved until next year (esp. since the contempt proceeding isn't until September). After reading the transcript, it looks like there will be a "motion to clarify" and a "motion for injunction." The motion to clarify deals with the repair of existing DVRs, but I'm curious what the "motion for injunction" is. I'm also curious what the statement "they have stated that they have swapped out boxes" means.

So at this point, I'll order a crow appetizer, with a possibly larger order this fall.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## gastrof

TiVo will end up owning Echostar/Dish, and two problems will be solved. No more infringement, and TiVo can now have a satellite system that works with TiVo, BECAUSE IT'LL *BE* TIVO!!!


----------



## TexasAg

gastrof said:


> TiVo will end up owning Echostar/Dish, and two problems will be solved. No more infringement, and TiVo can now have a satellite system that works with TiVo, BECAUSE IT'LL *BE* TIVO!!!


Dish Network has a market cap of almost $16 *b*illion. Echostar has a market cap of around $3.3 *b*illion. Tivo has a market cap of around $840 *m*illion. It's more likely that Tivo would be bought ought, not the other way around, esp. if Dish or Echo starts owing anything close to $800 million.

But you are right - in that case, no more infringement.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## jfh3

Greg Bimson said:


> DISH/SATS probably wants a declaratory ruling that their new software does not infringe, so that TiVo cannot try to sue for infringement. It is a defensive move.


And what are the odds that the DE court will even have a hearing before September?

I've got to think "just about as close to zero as numerically possible"


----------



## stoneharry

gastrof said:


> TiVo will end up owning Echostar/Dish, and two problems will be solved. No more infringement, and TiVo can now have a satellite system that works with TiVo, BECAUSE IT'LL *BE* TIVO!!!


It is impossible for TIVO to own DISH because DISH currently has a market cap of 15.77 billion and an enterprise value of 19.97 billion.

The damages to TIVO are not even a quarter billion.


----------



## sbiller

TexasAg said:


> Been working (can't earn a living posting here, after all).


This is way more interesting than work 



TexasAg said:


> The "notes" from today don't really match what I've heard about the hearing, so I'll have to assume that the mention of the upset judge and shelving the new software issue is correct. On second thought, the new software appears to have been only delayed until after 9/4, so it still could be an issue later on.
> 
> The thing with Delaware was unexpected, but probably planned well in advance. Echo didn't just go "Oh shoot, we lost in Texas, I know, let's file in Delaware!" Echo appears to have anticipated the judge not letting in the new software, so it preemptively filed a declaratory judgment action in a different court. We'll have to wait and see if Delaware takes it or kicks it back to Texas. If Tivo is forced to file a new lawsuit for the new software, the court in Delaware could keep the new suit (any new suit by Tivo would be filed after Echo's filing, so Delaware could keep it). Delaware might also have more favorable laws regarding corporate defamation or commercial disparagement (although I haven't looked into this, and I don't even know if this is part of the new lawsuit).


Does your reading of the transcript indicate that the Judge is not considering the new software?



TexasAg said:


> I'm also curious what the statement "they have stated that they have swapped out boxes" means.


Isn't this just talking about Dish swapping boxes for repair related to the exemption on the 192,000 boxes that were exempted from the original ruling?


----------



## gastrof

stoneharry said:


> It is impossible for TIVO to own DISH because DISH currently has a market cap of 15.77 billion and an enterprise value of 19.97 billion.
> 
> The damages to TIVO are not even a quarter billion.


You're no fun.


----------



## MichaelK

TexasAg said:


> ... I'm also curious what the statement "they have stated that they have swapped out boxes" means.
> 
> ...


you're clearly the lawyer my friend- but i think this is what its about?-

wasn't there something earlier about how dish was leaving the ~192k boxes in service as allowed. But then they said if those boxes died they intended to sent people advanced replacements from refurbed boxes. If I'm remembering correctly tivo said that would be a violation becasue it would be a new infringing box being deployed (and there's a bit in the injunction that says no new infringing boxes should get deployed).

So I'm guessing dish has admitted (lawyers say stipulated i think?) that they have in fact been doing advanced exchanges since the injunctions effective date.

sound like a good guess from a layman?


----------



## Hew

Anyone have a clear idea about where we are in terms of damages. If the damages are seen as royalty rate damages, how high can we go to by Sept. 4th? is the treble damage option still out?

Dish, if they had a different CEO, would have settled months ago for limited damages and a Dish/Tivo partnership in the works.


----------



## sbiller

10:07 ct/ approach; do you envision any more interrogatories;
10:08 Chu/ responds; for purpose of injunction we dont need further discovery, right now;
10:09 ct/ no additional discovery unless leave of court;
10:09 Chu/ separate issue; they have stated that they have swapped out boxes;
10:10 ct/ what do you think you need
10:10 Chu/ responds;
10:10 ct/ dont need discovery for hearing that we have set; no discovery until you request leave
of court;
10:11 Chu/ responds;
10:11 ct/ in what form and how much;
10:11 Chu/ responds; basic documentation;
10:12 ct/ is this going to be addressed in motion;
10:12 Chu/ no
10:12 McElhinny/ this is what we dont want;

I just noticed that at 10:07 they approached the bench? I assume that is what approach means. After that, it appears that Chu was very satisfied with proceeding with the contempt hearing and did not ask for additional discovery. 

At 10:11 the court asks, in what form and how much. Are they talking about the penalties?

The more I read this the better I understand the perspective that TiVo is happy about the results and the more I understand the filing of the suit in Delaware.


----------



## TexasAg

sbiller said:


> Does your reading of the transcript indicate that the Judge is not considering the new software?


I had originally heard that the new software was off the docket completely. After reviewing the transcript, I think the court was saying that they might consider the new software later (after 9/4).



sbiller said:


> Isn't this just talking about Dish swapping boxes for repair related to the exemption on the 192,000 boxes that were exempted from the original ruling?


The motion to clarify would have certainly involved this. Re-reading it, if you're right, then the court's comment that Tivo doesn't "need discovery for hearing that we have set; no discovery until you request leave of court" and Echo lawyer's comments that "this is what we don't want" probably deal with this issue (replacing broken infringing boxes).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## sbiller

TexasAg said:


> I had originally heard that the new software was off the docket completely. After reviewing the transcript, I think the court was saying that they might consider the new software later (after 9/4).


Since the new software is not being considered, Folsom will clearly find E* in contempt on 9/4. Its unclear to me what happens at that point. It sounds like he is going to levy fines and royalties on E* for the period that they've ignored the injunction (the purpose of the next 90 days). After that he'll consider issue #2 and perhaps modify the injunction to allow new software to be downloaded to the previously infringing hardware units. This will be another period of 90 days or so if not longer since expert witnesses will be needed. Bottom line is that he is not going to stay the injunction and some folks may go to jail for contempt? hmmm...

Do they really have the ability to appeal a contempt of court finding? Can he throw some folks in jail during the appeal process? How long will that appeal take? I suppose the grounds for appeal will be Folsom's unwillingness to modify the injunction to consider new software which was already thrown out earlier.


----------



## MichaelK

sbiller said:


> Since the new software is not being considered, Folsom will clearly find E* in contempt on 9/4. Its unclear to me what happens at that point. It sounds like he is going to levy fines and royalties on E* for the period that they've ignored the injunction (the purpose of the next 90 days). After that he'll consider issue #2 and perhaps modify the injunction to allow new software to be downloaded to the previously infringing hardware units. This will be another period of 90 days or so if not longer since expert witnesses will be needed. Bottom line is that he is not going to stay the injunction and some folks may go to jail for contempt? hmmm...
> 
> Do they really have the ability to appeal a contempt of court finding? Can he throw some folks in jail during the appeal process? How long will that appeal take? I suppose the grounds for appeal will be Folsom's unwillingness to modify the injunction to consider new software which was already thrown out earlier.


guick google news search pops up tons of appeals for contempt proceedings. So I'm sure DISH appeals. They stall for another couple years, then finally when they have exhausted all appeals and the supreme court refuses to get involved and there's 3 minutes left before the contempt order takes effect, ergen pulls the plug on the boxes. Or probably while the contempt appeals are making their way through the courts dish somehow otherwise gets the software declared more than colorably different and so they get found to be no longer infringing at that point while the battle over any fines for the time they were infringing is still ongoing.

It's YEARS away till anything happens to finalize this.

I guess short term when the supreme court refuses to hear the appeal over the original infringement then tivo at least gets the original check. A year or 2 after that there will be an agreement of the amount of money owed between the original judgement and the day that dish rolled out this new software.

then about 5-6 years after that the trial to determine if the new software infringed or not will exist.

then at that point dishes suit against tivo for patent infringement goes to court and we start this all over again in reverse.

Tivo is going to be going to court to battle dish for the next 20 years. At this point maybe they hope dish DOES just buy them so they dont get bankrupted with lawyers fees. I'm starting to think the plan to pick on DISH first was really really dumb.


----------



## Curtis

sbiller said:


> Do they really have the ability to appeal a contempt of court finding?


Yes but they may not get a stay of the injunction during the appeal this time. The appeals court is who approved the reimposition of the injunction as written.


----------



## timckelley

What happens if they're found in contempt, but they still refuse to turn off the boxes and refuse to pay damages to TiVo. What can TiVo do at that point?


----------



## Curtis

timckelley said:


> What happens if they're found in contempt, but they still refuse to turn off the boxes and refuse to pay damages to TiVo. What can TiVo do at that point?


TiVo won't need to do anything. The judge will do what is necessary. Few people have as much power as a federal judge.


----------



## acvthree

20 years? 

The Exxon Valdez civil case is coming up on 20 years of appeals isn't it?

Remember, this court is considered a "rocket docket".


----------



## bkdtv

timckelley said:


> What happens if they're found in contempt, but they still refuse to turn off the boxes and refuse to pay damages to TiVo. What can TiVo do at that point?


The Court would order the seizure of Echostar assets to pay for the damages.


----------



## HiDefGator

timckelley said:


> What happens if they're found in contempt, but they still refuse to turn off the boxes and refuse to pay damages to TiVo. What can TiVo do at that point?


they aren't refusing to pay damages, just refusing to turn off boxes they don't believe still infringe.


----------



## acvthree

>>>they don't believe still infringe

That they say don't infringe. It is impossible for us to know what they believe.

Al


----------



## old7

HiDefGator said:


> they aren't refusing to pay damages, just refusing to turn off boxes they don't believe still infringe.


Small correction: They aren't refusing to pay damages, just refusing to turn off boxes that they *claim no longer* infringe.


----------



## Greg Bimson

old7 said:


> Small correction: They aren't refusing to pay damages, just refusing to turn off boxes that they claim no longer infringe.


Bigger small correction: they *are* refusing to pay damages in a timely manner, which is their right, because DISH/SATS can still appeal to the Supreme Court that the Court of Appeals ruling was incorrect.


----------



## bidderman9

Do you think the Supreme Court will refuse the case before the Contempt hearing? That could make for a pretty interesting contempt hearing.


----------



## Greg Bimson

sbiller said:


> Do they really have the ability to appeal a contempt of court finding?


When it comes to the subject matter of the contempt hearing on 4 September, I do not believe that ruling will be appealable, unless there is some kind of procedural issue that is being challlenged. I mean, it is rather black and white:

Judge: DISH/SATS, have you disabled DVR functionality in the "Infringing Products"?
DISH/SATS: No.
Judge: You are in contempt.

Judge: DISH/SATS, have you disabled DVR functionality in the "Infringing Products"?
DISH/SATS: Yes.
Judge: How many receivers have been disabled?
DISH/SATS: None.
Judge: You've followed the order to disable, but have not disabled one DVR? You are in contempt.

Either way, it is rather clear.

I said this a long time ago. An injunction is not just some piece of paper. If there is any "grey area", it could be appealable, but this is not a grey area.


----------



## MichaelK

acvthree said:


> 20 years?
> 
> The Exxon Valdez civil case is coming up on 20 years of appeals isn't it?
> 
> Remember, this court is considered a "rocket docket".


rocket docket that takes 3+ months to get around to deciding if dish in in contempt or not?

also the apeals go all over the place.

Dish has now openened litigation in delaware.

And Dish's patent case against tivo has been on hold this whole time (and if I recall it isn't going to start till this case is over)


----------



## Greg Bimson

MichaelK said:


> And Dish's patent case against tivo has been on hold this whole time (and if I recall it isn't going to start till this case is over)


I believe there is a question whether or not that case will ever restart. I recall there being an issue over the patent DISH has, and whether or not it is valid.


MichaelK said:


> Dish has now openened litigation in delaware.


There may be some question whether or not that lawsuit will be valid. After all, both DISH/SATS and TiVo addressed the new software in their briefs, and the transcript from yesterday's status hearing definitely pointed to the fact that it could be heard. That would mean new software claims might not be heard elsewhere.


MichaelK said:


> also the apeals go all over the place.


Appeals for the District Court of East Texas go to the Eleventh Circuit Court of Appeals. That would be the same court that upheld the injunction and software verdict against DISH.


----------



## acvthree

>>>rocket docket that takes 3+ months to get around to deciding if dish in in contempt or not?

Apparently. From some articles I've read they state that the same case in a different court could take twice as long.

Al


----------



## MichaelK

acvthree said:


> >>>rocket docket that takes 3+ months to get around to deciding if dish in in contempt or not?
> 
> Apparently. From some articles I've read they state that the same case in a different court could take twice as long.
> 
> Al


I agree it's likely "fast" in comparison to the "norm" but I'm just saying the pace of the courts is pretty pathetic in general. So it could take years and years and years to get all this finalized. Sure intermediate parts will get settlled in various battles but "the war" is hardly over anytime soon.

to be honest i dont get it- i understand there needs to be time for motions and such and then the judge (or his staffers) need to read and research thing and then you need to be able to match up all the lawyers schedules. But if there's always a backlog besides those things- doesn't that mean there aren't enough judges or courtrooms? For example why did it take weeks to have this last metting that lasted 20 minutes just so they could schedule the next step?


----------



## MichaelK

Greg Bimson said:


> I believe there is a question whether or not that case will ever restart. I recall there being an issue over the patent DISH has, and whether or not it is valid.There may be some question whether or not that lawsuit will be valid. After all, both DISH/SATS and TiVo addressed the new software in their briefs, and the transcript from yesterday's status hearing definitely pointed to the fact that it could be heard. That would mean new software claims might not be heard elsewhere.Appeals for the District Court of East Texas go to the Eleventh Circuit Court of Appeals. That would be the same court that upheld the injunction and software verdict against DISH.


some potential positives there, but I'm not holding my breath that this one case is solved before the end of the year and I still dont think DISH will leave it at that- they'll sue some how some way someplace else.


----------



## acvthree

>>>I agree it's likely "fast" in comparison to the "norm" but I'm just saying the pace of the courts is pretty pathetic in general.

Oh, I agree. I just don't know what the emoticon is for irony.

>>>to be honest i dont get it

I don't either. Travel time, scheduling and so forth just for a 20 minute meeting seems rediculous to me.

>>>doesn't that mean there aren't enough judges or courtrooms?

No one wants to raise taxes to provide for courts and justices. The English system also gets more cumbersome with time. Also, the number of seats are defined by law, but many are unfilled at the moment. I'm not sure how many currently, but I think I read that a third were unfilled in 2007.


----------



## TexasAg

Greg Bimson said:


> Appeals for the District Court of East Texas go to the Eleventh Circuit Court of Appeals. That would be the same court that upheld the injunction and software verdict against DISH.


Appeals for Texas are normally handled by the Fifth Circuit Court of Appeals. The Federal Circuit Court of Appeals hears all patent appeals and is the one that upheld the software verdict against DISH. The Eleventh Circuit actually hears appeals from Georgia, Florida, and Alabama.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Greg Bimson

Then I may have got that wrong.

Any appeal will still go back to the court that lifted the stay and allowed the injunction to stand.


----------



## BlackBetty

The fact that Folsom doesn't want to hear about any software workaround during the sep 4th contempt hearing means E* is toast. Also Folsom is allowing for the discussion of higher damages since the original court win. 

Both of these items send a powerful message to E*. Anyone that thinks otherwise is very foolish. This is Folsom saying to E* "Settle now, you do not want to be standing in front of me come Sep 4th".


----------



## nrc

I suppose the good news is that we won't have to wait long before TiVo files their motion. That should clarify things a bit.

I'm baffled by what Dish hopes to gain with their suit. Am I wrong in thinking that it could take another year or two for them to get anywhere with that? Surely a court wouldn't make such a ruling based on a few written exhibits. Could they hope to use it as a stall tactic to stave off contempt proceedings while they act to swap out any remaining "Infringing Products"? Perhaps seeking a continuance while the Delaware court considers the issue of the new software?

Do we have any idea how many of "Infringing Products" are still in the field? Since E* seems determined to never, ever pay TiVo a licensing fee it wouldn't shock me regardless of the number.


----------



## TexasAg

BlackBetty said:


> The fact that Folsom doesn't want to hear about any software workaround during the sep 4th contempt hearing means E* is toast.


We'll see what happens. I've already stated (and beaten to death) the fact that the court should look at the differences between the original software and the modified software. And any finding of contempt is appealable (including the judge's refusal to look at the modified software), so unless Echo settles this won't be resolved for many months.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## samo

nrc said:


> Do we have any idea how many of "Infringing Products" are still in the field? Since E* seems determined to never, ever pay TiVo a licensing fee it wouldn't shock me regardless of the number.


I would imagine that majority of original 5xx units are still in a field. 501s and 508s are grandfathered for free service and because Dish offered at the time $5/month warranty that covers all the hardware, I would assume majority of customers still keep them. I still have my original 501 and two out of 3 508s have been already swapped out (hard drive failure). There is no incentive for the customer to get rid of them. Majority of 512 and 522 units were leased not sold. So there is no reason for people to get rid of them either - they get free exchange if they break. 721s and 921s didn't sell that many and are covered under allowed units anyhow.


----------



## BBURNES

What are the thoughts from the lawyers who post here about the advantages/disadvantages of TiVo opting to press the reinstatement of the hardware claims (under doctrine of equivalents) that the appeals court sent back?

Does the judge's ruling Friday change the liklihood of this?

thanks to all who post here!


----------



## TexasAg

BBURNES said:


> What are the thoughts from the lawyers who post here about the advantages/disadvantages of TiVo opting to press the reinstatement of the hardware claims (under doctrine of equivalents) that the appeals court sent back?


Infringement of the software claims was upheld for all "accused devices." Tivo wouldn't gain any additional damages since it doesn't matter if you infringe one claim or multiple claims of a patent - infringement of any patent claim entitles the patent owner to lost profits or a reasonable royalty. Tivo at some point will get paid by Echo for the infringement of the software claims but no more (even if Echo is later found to infringe the hardware claims in the same patent). However, if Tivo can get an infringement finding for the hardware claims, it would help prevent Echo from installing new software and saying that they are avoiding infringement (since Echo couldn't change the hardware in its DVRs with a software update).

The doctrine of equivalents (DOE) requires a showing that Echo does substantially the same thing in a patent claim in substantially the same way to produce substantially the same result. This is more difficult for Tivo now since the appeals court narrowed the scope of the claims. For example, how do you show that logically storing and indexing AV streams in a single buffer is substantially the same as storing the streams in different buffers? Or worse, how do you show that outputting separate audio and video streams is substantially the same as assembling audio and video streams into a single MPEG stream?
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## TREND_WIRE

>> if Tivo can get an infringement finding for the hardware claims, it would help prevent Echo from installing new software and saying that they are avoiding infringement (since Echo couldn't change the hardware in its DVRs with a software update).<<<<

The USPTO verified that, TiVo's patent claims are 100% percent valid; icluding, software and hardware and they are not appellable by Echostar---That happened because Echostar requested the validity of TiVo patent on both software and hardware. Any reason for those requests? 
If Echostar new software infringes TiVo patent, it is larceny. Judge Folsom will be very angry.


----------



## TexasAg

TREND_WIRE said:


> The USPTO verified that, TiVo's patent claims are 100% percent valid; icluding, software and hardware and they are not appellable by Echostar---That happened because Echostar requested the validity of TiVo patent on both software and hardware. Any reason for those requests? If Echostar new software infringes TiVo patent, it is larceny. Judge Folsom will be very angry.


You're confusing validity with infringement. It is possible for Tivo's patent claims to be (i) invalid, (ii) valid but not infringed, or (iii) valid and infringed (without even considering inequitable conduct, which could render a patent unenforceable regardless of whether it is valid or infringed).

Echo had clearly hoped Tivo's claims would be invalidated at the USPTO, so it wouldn't matter if Echo infringed. However, the USPTO stated that the patent claims are valid, which removed item (i) from the list above. This is unrelated to whether Echo actually infringed those claims, which is an entirely different question.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## BBURNES

TexasAg,

Thanks.

I understand the issue of hardware infringement not adding anything do the damages...Echo is either infringing or not.

But the point you make, "...if Tivo can get an infringement finding for the hardware claims, it would help prevent Echo from installing new software and saying that they are avoiding infringement (since Echo couldn't change the hardware in its DVRs with a software update)" is really the gist of my earlier question.

If Tivo gets the hardware infringement back in, it takes the software issue (colorably different, etc, etc) out of play. The standard is perhaps harder as you mention. But hardware infringement would be death to Echo in this suit (other than Supreme Court.) Couple questions:

Is a Texas judgement of DOE appealable by Echo?
Or has the appeals court already given Texas the latitude to make final decision since the hardware claim appeal has already been reviewed by them?
Echo filed suit against TiVo last week in Delaware, presumably to create an initial finding that the new software IS colorably different. Are you surprised that TiVo hasn't filed DOE hardware motion yet?

Thoughts?


----------



## MichaelK

questions on the hardware claims- 

doesn't that need a new trial and would take like another 4-5 years so wouldn't help anytime soon?

and does anyone know exactly what the infringing hardware was? Specifically was tivo basically saying that certain broadcom dvr on a chip's were infringing or is it how dish put the broadcom chips together with the rest of the hardware?


----------



## TexasAg

BBURNES said:


> Is a Texas judgement of DOE appealable by Echo?
> Or has the appeals court already given Texas the latitude to make final decision since the hardware claim appeal has already been reviewed by them?





MichaelK said:


> questions on the hardware claims-
> doesn't that need a new trial and would take like another 4-5 years so wouldn't help anytime soon?


Any trial for the hardware would be a new trial, and any decision in that would be appealable to the Federal Circuit Court of Appeals. Tivo could be looking at another couple years of trial and appeals.



BBURNES said:


> Echo filed suit against TiVo last week in Delaware, presumably to create an initial finding that the new software IS colorably different. Are you surprised that TiVo hasn't filed DOE hardware motion yet?


I was surprised by the Delaware filing. For Tivo, they may be waiting to see what happens with the contempt hearing before deciding whether to pursue the cost of another trial.



MichaelK said:


> and does anyone know exactly what the infringing hardware was? Specifically was tivo basically saying that certain broadcom dvr on a chip's were infringing or is it how dish put the broadcom chips together with the rest of the hardware?


This is a summary of one of Tivo's hardware claims:

A process for the simultaneous storage and play back of multimedia data, which includes: 
[1] accepting TV broadcast signals
[2] tuning to a specific program; 
[3] converting the program into an MPEG formatted stream for internal transfer and manipulation; 
[4] parsing the MPEG stream into its video and audio components; 
[5] storing the video and audio components on a storage device; 
[6] extracting the video and audio components from the storage device; 
[7] assembling the video and audio components into an MPEG stream; 
[8] sending the MPEG stream to a decoder; 
[9] converting the MPEG stream into TV output signals; 
[10] delivering the TV output signals to a TV receiver; and 
[11] accepting control commands from a user, where the control commands affect the flow of the MPEG stream.

Echo got around this claim because it didn't store the video and audio streams in separate buffers, and because it didn't assemble the audio and video streams into a single MPEG output stream.

Just based on a quick review, it looks like Echo got in trouble because of the way the Broadcom chip operated in its DVRs (meaning its programming and its operation in conjunction with other hardware elements).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## MichaelK

TexasAg said:


> ...
> 
> This is a summary of one of Tivo's hardware claims:
> 
> A process for the simultaneous storage and play back of multimedia data, which includes:
> [1] accepting TV broadcast signals
> [2] tuning to a specific program;
> [3] converting the program into an MPEG formatted stream for internal transfer and manipulation;
> [4] parsing the MPEG stream into its video and audio components;
> [5] storing the video and audio components on a storage device;
> [6] extracting the video and audio components from the storage device;
> [7] assembling the video and audio components into an MPEG stream;
> [8] sending the MPEG stream to a decoder;
> [9] converting the MPEG stream into TV output signals;
> [10] delivering the TV output signals to a TV receiver; and
> [11] accepting control commands from a user, where the control commands affect the flow of the MPEG stream.
> 
> Echo got around this claim because it didn't store the video and audio streams in separate buffers, and because it didn't assemble the audio and video streams into a single MPEG output stream.
> 
> Just based on a quick review, it looks like Echo got in trouble because of the way the Broadcom chip operated in its DVRs (meaning its programming and its operation in conjunction with other hardware elements).


thanks for trying to educate me but that just gives me a brain hurt- laughing.

so it looks like broadcom doesn't infringe becasue their chip can't do all that?

but would anyone making a dvr basically need to add hardware to the broadcom chip to make it work that would basically infringe on tivo's patent?


----------



## BBURNES

MichaelK,

Under the Doctrine of Equivalents, it is not necessary for TiVo to say the hardware is "exactly" the same. For lack of better term, it is the "six and one-half dozen of the other" doctrine. Even if a patented item is slightly different, if it performs substantially the same way to produce substantially the same result -- it still infringes.

What other chip makers may or may not have to do to make the chip non-infringing is anybody's guess! But one of the key reasons TiVo has brought this suit (in general) and may also pursue the hardware claim is that, if successful, not only do they collect from Echo, but precedent is also set -- allowing them to go after other DVR manufacturers, chip manufacturers, potentially DirecTV (after the no-sue agreement expires), cable companies, telephone companies, etc, etc.

This suit has far- and wide-reaching implications for TiVo.


----------



## ZeoTiVo

MichaelK said:


> thanks for trying to educate me but that just gives me a brain hurt- laughing.
> 
> so it looks like broadcom doesn't infringe becasue their chip can't do all that?
> 
> but would anyone making a dvr basically need to add hardware to the broadcom chip to make it work that would basically infringe on tivo's patent?


TiVo uses broadcom chips as well. This is where DISH knew very well how the chips worked in a TiVo and did try and do things differently so they could avoid infringement. The jury in Texas obviously felt that the DISH DVRs still did do substantially the same thing in the same way and found the hardware infringing. The higher court said the correct standard was not applied to make that finding though and thus remanded the hardware back.

I imagine TiVo is ruminating over bringing the hardware issue back to trial for the precise reason of making their IP holdings that much stronger by confirming their hardwaredesign - which was a very key piece of them getting a great working DVR to market for a marketable price.

Right now though - why cloud the issue and let the TiVo lawyers focus on the contempt hearing where it looks like the Judge is ready to slap DISH around for playing the system.


----------



## BobCamp1

BBURNES said:


> MichaelK,
> 
> Under the Doctrine of Equivalents, it is not necessary for TiVo to say the hardware is "exactly" the same. For lack of better term, it is the "six and one-half dozen of the other" doctrine. Even if a patented item is slightly different, if it performs substantially the same way to produce substantially the same result -- it still infringes.
> 
> What other chip makers may or may not have to do to make the chip non-infringing is anybody's guess! But one of the key reasons TiVo has brought this suit (in general) and may also pursue the hardware claim is that, if successful, not only do they collect from Echo, but precedent is also set -- allowing them to go after other DVR manufacturers, chip manufacturers, potentially DirecTV (after the no-sue agreement expires), cable companies, telephone companies, etc, etc.
> 
> This suit has far- and wide-reaching implications for TiVo.


The doctrine of equivalents isn't quite as broad as some make it out to be, but that's essentially correct. Also, damages are not quite as large.

Technically, Tivo could sue Broadcomm, but that's shooting themselves in the foot. Same with Motorola and Cisco. And the cable companies -- there goes the SDV adapter, and good luck developing the S4. And D* will simply sue them right back (look for that agreement to be extended).

Echostar had no other IPR to defend itself, and had no present or future business relationship with Tivo, which is why it was targeted. Tivo will not "go after" everyone else, they will simply come to an agreement with them. It will allow for smoother development for future products with these companies as they simply cannot ignore Tivo anymore.


----------



## Curtis

BobCamp1 said:


> The doctrine of equivalents isn't quite as broad as some make it out to be, but that's essentially correct. Also, *damages are not quite as large*.


Infringement is infringement.


----------



## ZeoTiVo

BobCamp1 said:


> Technically, Tivo could sue Broadcomm, but that's shooting themselves in the foot. Same with Motorola and Cisco. And the cable companies -- there goes the SDV adapter, and good luck developing the S4. And D* will simply sue them right back (look for that agreement to be extended).


I do not think TiVo can sue broadcomm - since they developed the chips and I am sure have IP behind their chip development.

Motorolla and Cisco may not have infringing products unless you try and broaden the whole thing out to timeshift TV via hard drive, which some think is the patent. As you say though "Doctrine of equilvalents" is not that broad and neither is the patent by TiVo.

DirectTV also did an NDS development work for their current crop and had working TiVo DVRs with full input from TiVo engineers. If DirecTV could get hit for infringement then they should pay extra special stupid penalties as well. But yes DirectTV does have replay patents so that would nake a cross licsense deal fairly easy to work out.

All in all this is more about going after DISH for entering good faith negotiations, getting info from TiVo on how the then fairly new tech works that TiVo came up with, and then axing the negotiations to go make their own DISH DVR. A move typical of DISH and something they still show an inclination for in how they work court cases as well.

I forsee TiVo working well with other companies and making deals as that is the definite way forward for TiVo as a company but not because TiVo is anything like DISH who would sue everybody if they thought they had a case.


----------



## TexasAg

Curtis said:


> Infringement is infringement.


And Tivo is going to be paid for that infringement. Tivo doesn't get more money simply because Echo may have infringed multiple claims in the same patent. Damages are owed for the infringement of one or more patent claims, but the amount of damages owed doesn't depend on the number of claims infringed.



ZeoTiVo said:


> I do not think TiVo can sue broadcomm - since they developed the chips and I am sure have IP behind their chip development.


It doesn't matter if Broadcom developed the chips independently and has many patents and other IP. If their chip infringes Tivo's patent, it infringes Tivo's patent regardless of those aspects. But, my guess is that the Broadcom chip doesn't do everything in Tivo's patent claims, which makes it non-infringing. Also, Broadcom isn't liable for what Echo does with its chips - since its chips likely have many non-infringing uses, Broadcom cannot be liable for patent infringement of this Tivo patent.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> And Tivo is going to be paid for that infringement.


TiVo won't get paid for the irreparable damage. There's no way to calculate it. The only remedy is the injunction.


----------



## TexasAg

MichaelK said:


> thanks for trying to educate me but that just gives me a brain hurt- laughing.
> 
> so it looks like broadcom doesn't infringe becasue their chip can't do all that?
> 
> but would anyone making a dvr basically need to add hardware to the broadcom chip to make it work that would basically infringe on tivo's patent?


Actually, I was curious, so I went back and looked at Tivo's "hardware" claims again. I'm not so sure that a finding of infringement of those claims would require the Echo DVRs to be shut down regardless of the software like I previously thought.

Tivo's hardware claims recite "parsing" an incoming MPEG stream into audio and video components, then storing the audio and video components on a storage device.

From what I've heard, Echo's press releases and patent application seem to indicate that they are simply storing all data on the DVR's hard drive without any parsing, then using statistical or probabilistic algorithms for trick play stuff.

If that's true, Echo's new software could actually help Echo avoid infringement of Tivo's hardware claims. It has been held that the "doctrine of equivalents" cannot be used to completely remove a limitation from a claim. If there is no parsing of the incoming MPEG stream in the modified Echo DVRs, Echo would not infringe the hardware claims, either literally or under the doctrine of equivalents (since the doctrine of equivalents cannot be used to completely remove the "parsing" limitation from Tivo's claims).

In that case, not only would Tivo not get any additional damages (since they will already have been paid for the infringement of the claims in the Tivo patent), but it would mean there could be no injunction based on the hardware claims (since no future infringement = no irreparable harm).

So, if Tivo were to sue for infringement based on Echo's original software/hardware combination, Tivo would get no more money damages. Tivo could possibly get an injunction, but it would be worthless if Echo no longer uses the original software. If Tivo were to sue for infringement based on Echo's modified software/hardware combination, Tivo would have problems since the modified software does not appear to "parse" an incoming stream, which is required in both the hardware and software claims.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

Parsing means "analysis". Clearly, Dish is doing analysis.


----------



## TexasAg

Curtis said:


> Parsing means "analysis". Clearly, Dish is doing analysis.


Tivo's hardware claim talks about parsing an MPEG stream, where the MPEG stream is separated into its video and audio components and then stored.

The appeals court specifically said this requires separation into distinct buffers. If the Echo DVR with the modified software never separates the MPEG stream into separate buffers and simply writes all data to the hard drive, there can be no infringement under the doctrine of equivalents. The doctrine of equivalents cannot be used to completely remove the "parsing-separation" limitation from the hardware claims. (EDIT: Perhaps this is more palatable for you, saying "parsing-separation" instead of just "parsing"?)

Oh, and I couldn't find where a court had said parsing=analyzing. Do you have the link? It wasn't in the appeal decision.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> Tivo's hardware claim talks about parsing an MPEG stream, where the MPEG stream is separated into its video and audio components and then stored.
> 
> The appeals court specifically said this requires separation into distinct buffers. If the Echo DVR with the modified software never separates the MPEG stream into separate buffers and simply writes all data to the hard drive, there can be no infringement under the doctrine of equivalents.
> 
> Oh, and I couldn't find where a court had said parsing=analyzing. Do you have the link? It wasn't in the appeal decision.


If Dish analyzes they parse. That means they infringe.

The court's definition of Parse=analyze is referred to on page 20 of the Fish and Richardson Dish agenda submittal.


----------



## TexasAg

Curtis said:


> If Dish analyzes they parse. That means they infringe.
> 
> The court's definition of Parse=analyze is referred to on page 20 of the Fish and Richardson Dish agenda submittal.
> 
> View attachment 10471


Fine, Curtis. If Echo merely stores all data directly only the hard drive without any pre-processing, do they "separate" into "distinct buffers"?

Answer - no.

The doctrine of equivalents cannot be used to completely remove the "separate into video and audio components" limitation and the "store the video and audio components" limitation from Tivo's hardware claims.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

TexasAg said:


> Fine, Curtis. If Echo merely stores all data directly only the hard drive, do they "separate" into "distinct buffers"?
> 
> Answer - no.
> 
> The doctrine of equivalents cannot be used to completely remove the "separate into video and audio components" limitation from Tivo's hardware claims.


Dish has been found to infringe the software claims. The hardware claims are moot.


----------



## dswallow

Curtis said:


> Dish has been found to infringe the software claims. The hardware claims are moot.


You're apparently ignoring the whole context of this particular discussion. This is a what-if discussion where TexasAg is just exploring the hardware side of potential claims.


----------



## TexasAg

Curtis said:


> Dish has been found to infringe the software claims. The hardware claims are moot.


So in other words, you can't say Echo would infringe, so let's change the subject.

We were specifically talking about whether Tivo should ask for re-trial on the DOE issue for the hardware claims. My answer is that they probably wouldn't gain much - they get no more money, they might get an injunction on the old software, but Echo appears to be using software that they have a good argument is non-infringing (so an injunction might not be worth much).



dswallow said:


> You're apparently ignoring the whole context of this particular discussion. This is a what-if discussion where TexasAg is just exploring the hardware side of potential claims.


Beat me to it!
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## segaily

TexasAg said:


> Fine, Curtis. If Echo merely stores all data directly only the hard drive without any pre-processing, do they "separate" into "distinct buffers"?
> 
> Answer - no.
> 
> The doctrine of equivalents cannot be used to completely remove the "separate into video and audio components" limitation and the "store the video and audio components" limitation from Tivo's hardware claims.


I suspect the hardware has to separate to play the files. If that is the case I would think you could make the argument that separating parsing and then storing is functionally equivalent to storing then separating and parsing to play the data. If all they do is change the order of a step that makes no difference in the overall process then I suspect that counts as functionally equivalent. At the very least it probably becomes an issue for a jury to decide.


----------



## Curtis

TexasAg said:


> Echo appears to be using software that they have a good argument is non-infringing (so an injunction might not be worth much)


The modified Dish software appears to infringe. They parse the broadcast signal and do everything else in claim 31.


----------



## TexasAg

segaily said:


> I suspect the hardware has to separate to play the files. If that is the case I would think you could make the argument that separating parsing and then storing is functionally equivalent to storing then separating and parsing to play the data. If all they do is change the order of a step that makes no difference in the overall process then I suspect that counts as functionally equivalent. At the very least it probably becomes an issue for a jury to decide.


Maybe. The problem is that the Tivo hardware claims imply an order - parse the MPEG stream and separate it into video and audio components, store the video and audio components (so the separation must occur before storage), retrieve the video and audio components (so the separation must occur before retrieval), and then process the video and audio components. Removing all parsing prior to storage would avoid literal infringement and probably avoid infringement under DOE.



Curtis said:


> The modified Dish software appears to infringe. They parse the broadcast signal and do everything else in claim 31.


Again, Curtis, we were talking about the hardware claims during a re-trial on the DOE issue.

But since you brought it up, how is Echo using source, transform, sink, and control objects? And how do the source, transform, and sink objects all receive "flow command events"? And how is Echo using a source object that obtains a buffer from the transform object? And how is Echo using the transform object to flow control the sink object or the source object? After all, you said Echo appears to infringe the software claims (and each one of these limitations comes from Claim 31).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> but Echo appears to be using software that they have a good argument is non-infringing


seems that point is moot right now. lets not forget that the Judge has no concern about DISH modifying anything and wants the DVRs shut down to satisfy the injunction.

Not sure what DISH could do to overturn contempt since it did indeed fail to comply.

How does DISH go about getting the injunction itself overturned is not something I have seen discussed yet but it seems they need to get to work on that. Not sure how the Delaware court would wnat to get involved in that either.


----------



## segaily

TexasAg said:


> Maybe. The problem is that the Tivo hardware claims imply an order - parse the MPEG stream and separate it into video and audio components, store the video and audio components (so the separation must occur before storage), retrieve the video and audio components (so the separation must occur before retrieval), and then process the video and audio components. Removing all parsing prior to storage would avoid literal infringement and probably avoid infringement under DOE.
> 
> .


I agree that changing the order avoids literal infringement but as an engineer I suspect I could make a strong argument that the hardware is still doing the functionally the same thing. I have no idea if TiVo could still win under DOE but I think they would have a shot.

Is it worth the time and money for TiVo to pursue the hardware claim when they already won a large chunk of the money they could get on the software claim. That to me is the big question and I suspect the answer is no it is not worth it for TiVo at this point.

If Dish somehow avoids the injunction however and then is able to show the new software really does not infringe then maybe the hardware claim would be worth a shot because TiVo would be able to collect money for the 3 or 4 years the DVRs were running during the new trial.


----------



## Greg Bimson

segaily said:


> If Dish somehow avoids the injunction however and then is able to show the new software really does not infringe then maybe the hardware claim would be worth a shot because TiVo would be able to collect money for the 3 or 4 years the DVRs were running during the new trial.


I think part of the problem is that the new software may actually diminish the need for the hardware. I have a feeling DISH/SATS did manage to get around the hardware infringement. So truthfully, trying to get the hardware claims readjudicated right now does nothing.

I will be one to state that I did believe TiVo should go after the hardware. Today, I am not so sure it even mattered.


----------



## bidderman9

TiVo Suit, Possible Sub Losses Haunt DBS Giant

http://www.multichannel.com:80/article/CA6566897.html?desc=topstory


----------



## bidderman9

Does anybody have access to the transcript for the TIVO/DISH conference call with the court on 5/30?


----------



## BlackBetty

bidderman9 said:


> Does anybody have access to the transcript for the TIVO/DISH conference call with the court on 5/30?


http://www.southernme.com/DAVY_v_GOLIATH/Tivo v Echostar/TIVO v Echostar 5-30-08transcript.pdf

Thank Mainer from IV for that.


----------



## sbiller

bidderman9 said:


> Does anybody have access to the transcript for the TIVO/DISH conference call with the court on 5/30?


Conference transcript pdf attached.


----------



## timckelley

bidderman9 said:


> TiVo Suit, Possible Sub Losses Haunt DBS Giant
> 
> http://www.multichannel.com:80/article/CA6566897.html?desc=topstory


It was pleasurable reading that story, which talks about the impending doomsday for Dish, suggesting they might lose $billions. 

I noticed they say that Dish has already said they'll appeal to the U.S. Supreme Court. I wasn't aware of that. (I knew they could, but not that they would.)

They also talk about the current infringement damages, including interest, being in the 8 digits. I thought it was supposed to be in the 9 digits.


----------



## sjgmoney

The Bernstein report is extremely significant as Moffet is the first analyst to finally pick up on what could be the worst case scenario for DISH. As a "Wall Streeter" it has been amazing to see the issue totally ignored when the damage could be so significant.

Some Quotes (parphrased form memory):

"The option to settle and license from Tivo for $1 per month is probably gone"
"Tivo could potentially strike an exclusive deal with DTV, shutting DISH out of the DVR market and costing them billions"

I'll look at my hard copy again tomorrow and add specifics.


----------



## bidderman9

Thanks for posting the transcript. It was interesting reading. Checking out the full text gives a little different slant than the short hand version. 

From the short hand version and all the chat here, I was under the impression that the Judge took the "non-infringing" software off the table, when in fact both parties agreed to see if they were in contempt first. Not having any legal background what so ever, it appears that the Judge is only reacting to motions filed by either party. In this case a contempt motion filed by TIVO.

Also it appears that TIVO will get a small cash influx for legal fees from Echo*

It is a little different slant on the whole thing.


----------



## steve614

bidderman9 said:


> TiVo Suit, Possible Sub Losses Haunt DBS Giant
> 
> http://www.multichannel.com:80/article/CA6566897.html?desc=topstory





timckelley said:


> It was pleasurable reading that story, which talks about the impending doomsday for Dish, suggesting they might lose $billions.


My favorite part.



> Moffett estimated that if Dish were found in contempt and had to immediately disable its DVRs, it would *cost the satellite giant about $1.6 billion*. That is not to mention how much it would cost to license the technology from TiVo or if the DVR maker would license the technology to them at all.


I hope Tivo denies a license deal and tells DISH to go ______ themselves.


----------



## timckelley

In the final endgame, I see TiVo holding a figurative legal knife with the pointy end against Dish's chest, and as Dish finally runs out of the strength to hold off the inevitable, they scream for mercy, as TiVo denies the request, saying "checkmate", as the knife slowly and surely slides fully between Dish ribs, piercing it's heart and draining it's life force from it. (inspired by the scene in "Saving Private Ryan" where the nazi soldier does this to an american soldier.)


----------



## ZeoTiVo

bidderman9 said:


> Thanks for posting the transcript. It was interesting reading. Checking out the full text gives a little different slant than the short hand version.
> 
> From the short hand version and all the chat here, I was under the impression that the Judge took the "non-infringing" software off the table, when in fact both parties agreed to see if they were in contempt first. Not having any legal background what so ever, it appears that the Judge is only reacting to motions filed by either party. In this case a contempt motion filed by TIVO.
> 
> Also it appears that TIVO will get a small cash influx for legal fees from Echo*
> 
> It is a little different slant on the whole thing.


that was the slant we had here. 
The contempt hearing is solely about DISH not complying with the injunction. Dish had tried to get wording in the injunction when it was written that "modding the software to colorably different" would also make it in compliance with the injunction. the Judge rejected that wording then as too big a loophole and reconfirmed his position on that in the 5/30 status meeting when he set a contempt hearing and said modded software would not be part of the contempt proceeding. Also of course the Texas court and Judge Folsom could be involved in any motion to "rescind"(no idea what legal term or proceeding) the injunction. I would assume that to be the post Sept. 4th mentions in the transcript. It actually looks like the Delaware move is to get something going now and thus speed up the legal time by DISH  to get the software ruled non-infringing

In the meantime though, I think the analysts are reacting, and wisely so, to the 5/30 status meeting in which the Judge confirmed that working DVRs, no matter anything else, are in contempt of the injunction. This is not official until the Sept. 4th contempt hearing, of course, but analysts are getting ahead of the worst case scenario.

Looks like a dollar a month a DVR would have been a really good settlement. Why does the DISH stakeholders put up with such obstinacy in these matters?


----------



## sjgmoney

I posted some quotes from memory regarding the analyst's report late last night. Here are the exact interesting quotes:

"...But the stakes in the TiVO case appear to be rising rapidly. If DISH loses a current round of contempt litigation related to their alleged "work around," then the costs to DISH of disabling DVRs, settling with TiVO, or &#8211; worst of all &#8211; potentially engaging in a bidding war for the right to continue offering DVRs at all, could be in a worst case scenario in the billions&#8230; far higher than currently contemplated. Even the option of settling the case for just $1 per month per subscriber may well have passed."

"We believe that, should TiVO ultimately prevail in this case, TiVO would be under no obligation to license its service to DISH at all, either for $1 per month, as is widely speculated, or any other price, for that matter. In a worst case scenario, they could potentially auction their DVR license "to the highest bidder(s)."

"With each sequential loss for DISH and win for TiVo, one can assume that TiVo's negotiating position has gotten better and better, and the cost of a license for DISH has presumably increased. A $1.00 per month settlement may no longer be available to DISH."

Report by Bernstein Research's Craig Moffett. Nothing posted is a solicitation to buy or sell any stock.


----------



## TexasAg

ZeoTiVo said:


> The contempt hearing is solely about DISH not complying with the injunction. ... the Judge ... reconfirmed his position on that in the 5/30 status meeting when he set a contempt hearing and said modded software would not be part of the contempt proceeding.


The judge did that?

I've read the transcript twice. Regarding the contempt issue, I see the following:

(i) Tivo says they want a contempt hearing for the violation of the injunction "on its face."

(ii) Tivo also asks for discovery related to (i) Echo's design-around (the new software) and (ii) damages since the verdict.

(iii) Echo responds and says the proper standard is not to have contempt hearings for good-faith attempts to design around a patent.

(iv) Echo notes that the court needs to decide early based on the facts whether a contempt proceeding is the right proceeding to have (my guess is that this is basically saying the court needs to use the "more than colorably different" standard to see if contempt is appropriate).

(v) Echo says Tivo needs to clarify what its basis for contempt is, and the judge says Tivo's motion coming in 10 days would clarify that.

(vi) After discussing damages that have accrued since the verdict, they come back to the injunction and Tivo says their motion will be limited to just whether Echo has violated the injunction on its face.

(vii) The court says everyone will have more guidance once everyone sees Tivo's motion.

(viii) Later, Echo comes back to the issue of discovery for the design-around, and the court says anyone signing declarations can be deposed, etc. (as they had previously discussed). They also agree that no additional discovery is needed right now but could be later. Tivo says it might need discovery if Echo "raises certain issues" related to the contempt hearing (I wonder what that might be, perhaps the design-around?)

(ix) After a little while, they go back to the new software, and the court says it will give guidance on that issue once the judge looks at the correspondence. This is dealing with the issue of "new" boxes and the modified software.

I see Tivo repeatedly trying to say they want the initial contempt proceeding to be about whether Echo violated the injunction on its face. Tivo said that's what their contempt motion will say. Echo responds and brings up the new software, which the judge is apparently aware of. Interestingly, the judge allows Echo's lawyers to discuss the new software, even though he earlier cut off Tivo's attorney from arguing what the injunction "plainly states."

Everyone seems to think the judge shelved the new software since Tivo wants to limit the initial contempt proceeding to the violation of the injunction on its face. Echo's lawyer plainly states that Tivo can file "whatever motion they want," but the court must make an early determination whether contempt is appropriate.

Even if Tivo tries to limit the contempt proceeding in that way, Echo is clearly prepared to bring up the new software and argue that they have made a good-faith attempt to design around Tivo's patent, so contempt is not appropriate. I don't see anything the judge said that would prevent Echo from doing this. Instead, there was clearly a lot of "we'll know more once we see Tivo's motion."
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> (iii) Echo responds and says the proper standard is not to have contempt hearings for good-faith attempts to design around a patent.


I base it off this fact right there - Judge Folsom clearly ignored that since there is a scheduled contempt hearing and the judge will accept the motions for such. If he gave that any credence for this specific injunction he would have delved further into that in the status meeting, I think.

Clearly TiVo will file a motion similar to the one it prepared for the status hearing which will seek simple non-compliance on the face of the injunction to turn off the DVRs.
Clearly DISH will have another shot at bringing up the modded software in its motion. The Judges history, and the analysts summary we have seen here, indicate it will not be much of a shot. 
It looks like DISH's only chance is in "appealing" any contempt ruling against DISH. I am not sure how or if such an appeal is possible but it would be to the same higher court that let the injunction stand as written and did not have DISH challenge the injunction the first time round. I give DISH bad odds on this one.


----------



## RoyK

ZeoTiVo said:


> .
> In the meantime though, I think the analysts are reacting, and wisely so, to the 5/30 status meeting in which the Judge confirmed that working DVRs, no matter anything else, are in contempt of the injunction.


I just read the transcript very carefully and darned if I can see where the Judge confirmed that. Would you point it out to me please?


----------



## TexasAg

ZeoTiVo said:


> I base it off this fact right there - Judge Folsom clearly ignored that since there is a scheduled contempt hearing and the judge will accept the motions for such.


Actually, the judge said they'd know more after Tivo filed its motion. And from what I read, the judge never "shelved" the new software. He could have easily told Echo during the discussion of the new software that it was irrelevant and the only issue would be whether Echo violated the injunction on its face.

Again, Tivo is clearly prepared to submit a contempt motion arguing that Echo is violating the injunction on its face. As Echo's lawyer said, Tivo can file whatever motion it wants. However, Echo is clearly prepared to say that contempt is not appropriate because of its new software. Even though there is a contempt hearing scheduled, nothing has been ruled on to say that Echo is prohibited from bringing up the new software.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> Actually, the judge said they'd know more after Tivo filed its motion. And from what I read, the judge never "shelved" the new software. He could have easily told Echo during the discussion of the new software that it was irrelevant and the only issue would be whether Echo violated the injunction on its face.


except that a Judge can not tell TiVo what to write in its motion nor presume it. But statements like "the court will give guidance after the TiVo motion is filed" certainly allow the Judge to give DISH "more direction" in 10 days. 

I inferred from your posts prior to 5/30 you thought that contempt would be shelved at the status hearing and it was not. The discovery could clearly be about figuring damages for a contempt finding against DISH as well as dropping contempt.

Bottom line - I am not seeing how moving along to an actual contempt hearing is vindicating the position of modded software invalidates the injunction.


----------



## BobCamp1

ZeoTiVo said:


> Looks like a dollar a month a DVR would have been a really good settlement. Why does the DISH stakeholders put up with such obstinance in these matters?


Because most companies get a "Dear Infringer" letter every week. You can't pay royalties to everybody who cries wolf. It's up to the patent department (usually armed with engineers and lawyers) to figure out which claims are serious. Paying $1/month when you clearly thought you had worked-around a patent is dumb. But I don't think Tivo ever offered that good a deal to Dish -- reread the article again. It's all speculation (having read this thread, you should know what speculation is). 

Having said that, usually during the trial the legal team will inform you of how it's going. If it's not going well (or even if it is), they'll tell you to settle BEFORE a verdict is reached. It's possible that Echostar's lawyers simply misread what was going on in the courtroom.


----------



## TexasAg

ZeoTiVo said:


> I inferred from your posts prior to 5/30 you thought that contempt would be shelved at the status hearing and it was not. The discovery could clearly be about figuring damages for a contempt finding against DISH as well as dropping contempt.


Until today, I hadn't seen the actual transcript of the 5/30 hearing. All I had were statements here and elsewhere that the judge had shelved the new software issue until after the 9/4 hearing. Imagine my surprise when I read the transcript and found nothing in it about shelving the new software. EDIT: After re-reading your post, I mis-understood it. To answer your question, I was initially under the impression that the court could decide on 5/30 whether contempt would be appropriate, or at least let the parties know whether the new software could even come in during a contempt proceeding (which would have effectively taken the wind out of Tivo's sails in only arguing the injunction "on its face"). However, the judge seems to be keeping his thoughts to himself until he actually sees Tivo's motion and probably Echo's response. His comment at the beginning of the hearing that he didn't want to hear any arguments basically shot down any hope of resolving the legal questions surrounding the contempt issue.



ZeoTiVo said:


> Bottom line - I am not seeing how moving along to an actual contempt hearing is vindicating the position of modded software invalidates the injunction.


My point is that Tivo doesn't get to decide what the proper legal standard is for contempt of the injunction. Tivo's constant referral to Echo's violation of the injunction "on its face" means Tivo wants no new software mentioned at the 9/4 hearing. Echo's constant referral to the new software shows that they think it avoids any finding of contempt. I happen to agree with Echo that, as long as their new software is "more than colorably different" from the old software found to infringe, Echo cannot be held in contempt. I know others disagree, but the "more than colorably different" standard is the proper one to use in patent contempt proceedings when an infringer modifies an infringing device.

In any event, we should have a pretty good idea before 9/4 whether the judge is agreeing with Tivo or Echo about the new software possibly avoiding contempt. The judge has said he'll provide some guidance, and the court will need to let Tivo do some discovery if the new software will be discussed at the 9/4 hearing.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## bidderman9

For me the issue becomes clear when all parties agree that this is "strictly a legal question". It is not a technical issue. Then they follow up/finalize with the fact that a technical advisor will not be required for the judge. If the software issue were going to come in to play, clearly the judge would need a technical advisor. The contempt hearing will be based solely on the legal merit whether Echo* abided by the legal definition of the injunction.


----------



## TexasAg

bidderman9 said:


> For me the issue becomes clear when all parties agree that this is "strictly a legal question". It is not a technical issue. Then they follow up/finalize with the fact that a technical advisor will not be required for the judge. If the software issue were going to come in to play, clearly the judge would need a technical advisor. The contempt hearing will be based solely on the legal merit whether Echo* abided by the legal definition of the injunction.


Good point, but even Tivo appeared to acknowledge the possibility that they would need discovery for the contempt hearing depending on the issues raised by Echo. Everyone knew Tivo would be asking for contempt based on the injunction "on its face." The question that they are unsure of (and that we were arguing about earlier here) was whether the new software could form the basis for a finding of no contempt. The court needs at some point prior to 9/4 to decide whether the new software is an issue since Tivo needs discovery.

Just my guess - Tivo's motion will say Echo violates the injunction on its face, and Echo responds and says the new software makes their DVRs more than colorably different so they are not in contempt. Tivo will then ask for discovery related to the new software. The court either grants it (giving us an indication that the new software is relevant to the 9/4 hearing) or denies it (giving us an indication that the new software is not relevant to the 9/4 hearing).

Again, everyone is operating based on what we think Tivo will ask for in its contempt motion.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

BobCamp1 said:


> Because most companies get a "Dear Infringer" letter every week. .


clearly this has gone long beyond "dear infringer" and after the initial ruling of infringement but before the appeal TiVo may well have been amenable to a simple license fee.

There were plenty of times a reasonable company would have settled with TiVo and DISH passed every one of those times by.

and yes the speculation in the article is around the odds are of DISH getting cited for contempt. If the speculation here that "colorably different" is important to the Judge in making his ruling is correct I contend the status hearing would have gone very differently. Some here thought that a contempt hearing would have been ruled out at the status hearing - instead we have a fairly quick date of early Sept. scheduled and a motion from TiVo in 10 days. By TexasAg standards the Judge should have stated that a contempt hearing was not likely and none would be scheduled pending further discovery by TiVo to make a case for it. So I am operating basd on what the Judge is doing in moving forward QUICKLY with a contempt hearing - not on what TiVo is asking for which is obviously the best thing for TiVo regardless of what legal standard will prevail.

so speculate away, I will sit back and watch the Judge play DISH for a change.


----------



## TexasAg

ZeoTiVo said:


> So I am operating basd on what the Judge is doing in moving forward QUICKLY with a contempt hearing


The judge scheduled a contempt hearing 3 months away, left open the possibility of discovery for the new software (and Tivo acknowledged the need for discovery if Echo raises "certain issues"), refused to tell Echo the new software was irrelevant even when Echo's lawyers were talking about it, and flat out said that everyone needs to see Tivo's motion before the issues are clarified. This doesn't seem like the judge is playing Echo.



ZeoTiVo said:


> By TexasAg standards the Judge should have stated that a contempt hearing was not likely and none would be scheduled pending further discovery by TiVo to make a case for it.


I've made clear what I think the proper legal standard is for contempt proceedings. And the cases make it clear that even if a contempt proceeding is occurring, the judge cannot find contempt when a modified product is "more than colorably different" than the original infringing product.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> I've made clear what I think the proper legal standard is for contempt proceedings. And the cases make it clear that even if a contempt proceeding is occurring, the judge cannot find contempt when a modified product is "more than colorably different" than the original infringing product.


then why is the Judge even considering a contempt hearing? or Why is the Judge not pushing discovery on the new software already?


----------



## TexasAg

ZeoTiVo said:


> then why is the Judge even considering a contempt hearing? or Why is the Judge not pushing discovery on the new software already?


The contempt hearing was scheduled because Tivo told him they will be submitting a contempt motion. And Tivo actually said they would request discovery if they felt it necessary.

The judge (a) hasn't seen Tivo's contempt motion and (b) hasn't seen Echo's response. Once he's seen what the 2 sides' official positions are, he can make a decision.

Nothing is set in stone right now - the judge could view the filings and decide Tivo needs discovery on the new software. The judge could view the filings and decide the new software isn't relevant and deny Tivo's request for discovery on the new software. The judge could postpone the 9/4 hearing, appoint a technical advisor, or tell the lawyers to dance around in tutus (although this is probably an abuse of discretion and appealable).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> or tell the lawyers to dance around in tutus (although this is probably an abuse of discretion and appealable).


It would be interesting though.


----------



## bidderman9

TexasAg said:


> ...
> Just my guess - Tivo's motion will say Echo violates the injunction on its face, and Echo responds and says the new software makes their DVRs more than colorably different so they are not in contempt. Tivo will then ask for discovery related to the new software. The court either grants it (giving us an indication that the new software is relevant to the 9/4 hearing) or denies it (giving us an indication that the new software is not relevant to the 9/4 hearing).
> 
> Again, everyone is operating based on what we think Tivo will ask for in its contempt motion.


From a financial (not legal but financial) perspective, once the court rules that Echo* is in violation of the injunction on its face, it is game over. Echo* will be forced to settle. Even if a second contempt hearing is set up with technical discovery, Echo* cannot possibly afford to let it get past the first hearing. Echo* even said this at the last status meeting. They do not want multiple contempt hearings. That is why I believe all the talk about the software is moot at this point. It cannot possibly reach that point. Remember the article about the $1.6 billion dollar financial disaster?


----------



## RoyK

bidderman9 said:


> ... Remember the article about the $1.6 billion dollar financial disaster?


Do not believe everything you read on the internet.....


----------



## bidderman9

lol, true, but regardless they are not going to let their DVR's to be shut down. That would be the ultimate cost to Echo*


----------



## old7

TexasAg said:


> I've made clear what I think the proper legal standard is for contempt proceedings. And the cases make it clear that even if a contempt proceeding is occurring, the judge cannot find contempt when a modified product is "more than colorably different" than the original infringing product.


I have a question for you, I have looked at some of the cases that Echo/Dish used to support their argument, but most look like they deal with products that have been found it be infringing, a change has been made to the product and then sales have resumed with a "new product." None that I have found deal with the situation that we are in now, an infringing product that has been modified in the field.

Now the question, have you found any cases that deal with this issue?


----------



## TexasAg

old7 said:


> I have a question for you, I have looked at some of the cases that Echo/Dish used to support their argument, but most look like they deal with products that have been found it be infringing, a change has been made to the product and then sales have resumed with a "new product." None that I have found deal with the situation that we are in now, an infringing product that has been modified in the field.
> 
> Now the question, have you found any cases that deal with this issue?


I haven't looked too much. It's hard to find cases online through yahoo or google with just a couple of keywords.

But there shouldn't be any distinction when talking about software since software can be downloaded to existing devices to make the "previously-adjudged infringing devices" into "more than colorably different" devices.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> I haven't looked too much. It's hard to find cases online through yahoo or google with just a couple of keywords.
> 
> But there shouldn't be any distinction when talking about software since software can be downloaded to existing devices to make the "previously-adjudged infringing devices" into "more than colorably different" devices.


No, not always. Most software the end user has far more control over updates than the manufacturer/developer. This case is an exception to the rule, RIM/NTP case was another.

This distinction is very germane to the issue.


----------



## TexasAg

old7 said:


> No, not always. Most software the end user has far more control over updates than the manufacturer/developer. This case is an exception to the rule, RIM/NTP case was another.
> 
> This distinction is very germane to the issue.


I'm not clear on this. Echo clearly has control over the software on its boxes, so it can easily download the new software to all boxes that are currently in service. As for boxes not currently in service, well, there is no way for Echo to shut down the DVR functionality or update the software.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> I'm not clear on this. Echo clearly has control over the software on its boxes, so it can easily download the new software to all boxes that are currently in service. As for boxes not currently in service, well, there is no way for Echo to shut down the DVR functionality or update the software.


I'm saying in most software patent cases the manufacturer doesn't have the same degree of control over the software as Echo/Dish does in this case. Take an auto manufacturer as an example, they would have a very difficult time convincing all users to bring their cars in to have the software disabled.


----------



## TexasAg

old7 said:


> I'm saying in most software patent cases the manufacturer doesn't have the same degree of control over the software as Echo/Dish does in this case. Take an auto manufacturer as an example, they would have a very difficult time convincing all users to bring their cars in to have the software disabled.


I follow you, and I agree.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> I follow you, and I agree.


That is why I asked, because all of the cases that I looked at that Echo/Dish used to support their theory don't fit this scenario. Now I haven't looked at all of them, but I was interested if you had found any cases where the "infringing product" had been modified in the field.

There are very few patent cases where an "infringing product" has been modified after being released to consumers.


----------



## TexasAg

old7 said:


> There are very few patent cases where an "infringing product" has been modified after being released to consumers.


That's because, as you said, they usually can't be modified. Which is also why infringers are required to pay damages and are enjoined from selling the infringing products further. I don't expect to find much of anything for this particular scenario.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> That's because, as you said, they usually can't be modified. Which is also why infringers are required to pay damages and are enjoined from selling the infringing products further. I don't expect to find much of anything for this particular scenario.


RIM (Blackberry)/NTP is one example, but they settled just before the contempt hearing.


----------



## TexasAg

old7 said:


> RIM (Blackberry)/NTP is one example, but they settled just before the contempt hearing.


Jerks.

Of course, if they hadn't settled and we had a ruling, this case wouldn't be nearly as interesting.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Daven

If anyone is interested, I've put together a web page that has most of the important documents from this case in one place. They are in PDF format so viewing is no problem for any platform. By the way, this is the source page for the 5/30 document that sbiller posted.

Here is the link:

[URL="/[/URL]


----------



## MichaelK

BobCamp1 said:


> Because most companies get a "Dear Infringer" letter every week. You can't pay royalties to everybody who cries wolf. It's up to the patent department (usually armed with engineers and lawyers) to figure out which claims are serious. Paying $1/month when you clearly thought you had worked-around a patent is dumb. But I don't think Tivo ever offered that good a deal to Dish -- reread the article again. It's all speculation (having read this thread, you should know what speculation is).
> 
> Having said that, usually during the trial the legal team will inform you of how it's going. If it's not going well (or even if it is), they'll tell you to settle BEFORE a verdict is reached. It's possible that Echostar's lawyers simply misread what was going on in the courtroom.


I'm not completely certain- but EVERYTHING I read on the web (take it for what it's worth) seems to indicate that dish NEVER settles as a matter of policy.

Not sure if there's anything wrong with that on the face of it- I've used the analogy before with baseball teams- small market teams generally try to settle with their players early on in an effort to keep costs down- but by doing that though they can get locked in to long term contracts with duds. Bigger market teams sometimes as a matter of policy never settle with their players and wait till they go to free agency and then pay whatever the current market rate is. Not sure that either way is better or worse.

Once could make the argument that a "normal" company settles 10 out of 10 cases for an average of 10 million each. Dish's stategy would be to fight till the death in an attempt to win 9 out of 10 with the assumption that the one loser would cost them less than 100 million. (made up numbers to show the logic).


----------



## ChuckyBox

old7 said:


> RIM (Blackberry)/NTP is one example, but they settled just before the contempt hearing.


Contempt wasn't even on the table. They settled before the judge issued (re-issued) an injunction.


----------



## MichaelK

TexasAg or any of the other lawyers here can you explain the legality of contempt some-

I was under the impression that contempt was an issue purely between the ordered party and the judge. The judge isssues an order and expects it to be followed. What does tivo have ANYTHING to do with this? Why does tivo need to file a motion?

Seems kind of messed up to me- sounds like you can blow off a judges order as long as no other 3rd party calls you on it?

It's almost like private people are being forced to do the governments work. Spend their time and money to have the government do it's job? What if Tivo ran out of money and couldn't afford to pay lawyers to bring up the issue (and assuming DISH is in contempt for hte sake of argument)- since tivo was put out of business the judge would allow the order to be violated for ever?

If a government union goes on strike and the judge orders them back to work. And they dont. Does the justice department have to go to court to ask for contempt? Wouldn't the judge just take care of it on his own?

I guess my previous understanding of contempt is not the reality....


----------



## Curtis

MichaelK said:


> TexasAg or any of the other lawyers here can you explain the legality of contempt some-
> 
> I was under the impression that contempt was an issue purely between the ordered party and the judge. The judge isssues an order and expects it to be followed. What does tivo have ANYTHING to do with this? Why does tivo need to file a motion?


Judges don't have investigators working for them. They are not fact finders. Someone has to make an allegation of contempt. Otherwise they wouldn't even know about it.


----------



## TexasAg

Curtis said:


> Judges don't have investigators working for them. They are not fact finders. Someone has to make an allegation of contempt. Otherwise they wouldn't even know about it.


Agreed. Most judges wait for one side to raise the possibility of contempt, then set a hearing, take evidence, and decide. Patents are slightly more complicated since, as you can see, there are different rules about what an infringer is entitled to do and what the process is for finding contempt when new/modified products are involved.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

ChuckyBox said:


> Contempt wasn't even on the table. They settled before the judge issued (re-issued) an injunction.


Yes, you are right. I remember Judge Spencer gave them a stern warning to settle. I was thinking it was between the injunction and contempt hearing. They settled before the injunction was reinstated.


----------



## MichaelK

interesting-

makes sense that judges dont have investigators.

so judges don&#8217;t determine facts- they merely interpret the legality of the facts? 

Also- curious what if I judge seems something obvious- is he/she allowed to act without someone asking? For example if he ordered the local government to install a ramp at the front of the court within 60 days. He comes to work 61 days later and see's no ramp. Can he act or does he need to wait for someone to complain? 

To be honest, I still don&#8217;t understand why he didn't rule on literal infringement last week- in 10 seconds he could have said yes or no. Couldn't someone have just asked- "hey is there literal infringement in play?" he could have said "yes I'll give DISH till midnight to comply or I will have the marshals go get ergen and lock him up tomorrow morning" or "obviously it's more complex then literal and lets hold some hearing later to see what is going on. 

I mean I can see the deal now:

tivo's motion= "if you read it literally dish is not in compliance"

Dish's motion= "literal reading is irrelevant because..."

so is literal right or wrong? Why does it take 3 months to get that far. 
Or is the judge basically admitting he doesn't know at the moment how he interprets his own order and needs to be instructed as to what earlier courts have done? 


Also- Just read the minutes- that&#8217;s vastly different then the summary&#8217;s so far. If I read it correctly, the judge didn&#8217;t decide to look at literal infringement first and then get to software later- that was pretty much tivo&#8217;s request.


----------



## TexasAg

MichaelK said:


> so judges don't determine facts- they merely interpret the legality of the facts?


They can hear facts and decide which ones to believe.



MichaelK said:


> Also- curious what if I judge seems something obvious- is he/she allowed to act without someone asking? For example if he ordered the local government to install a ramp at the front of the court within 60 days. He comes to work 61 days later and see's no ramp. Can he act or does he need to wait for someone to complain?


Judges can sometimes initiate proceedings on their own. At the very least, they could suggest to one party that they might want to consider a contempt motion.



MichaelK said:


> To be honest, I still don't understand why he didn't rule on literal infringement last week- in 10 seconds he could have said yes or no. Couldn't someone have just asked- "hey is there literal infringement in play?" he could have said "yes I'll give DISH till midnight to comply or I will have the marshals go get ergen and lock him up tomorrow morning" or "obviously it's more complex then literal and lets hold some hearing later to see what is going on.
> 
> I mean I can see the deal now:
> 
> tivo's motion= "if you read it literally dish is not in compliance"
> 
> Dish's motion= "literal reading is irrelevant because..."
> 
> so is literal right or wrong? Why does it take 3 months to get that far.
> Or is the judge basically admitting he doesn't know at the moment how he interprets his own order and needs to be instructed as to what earlier courts have done?


It's not a clear-cut issue. One side says read it literally, the other side says don't and the law is on our side. The judge will wait and see what each side argues in their motions and replies. The 3-month delay was due to the court's heavy schedule.



MichaelK said:


> Also- Just read the minutes- that's vastly different then the summary's so far. If I read it correctly, the judge didn't decide to look at literal infringement first and then get to software later- that was pretty much tivo's request.


I agree. It was entirely different than what I heard last week,
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## samo

> To be honest, I still dont understand why he didn't rule on literal infringement last week- in 10 seconds he could have said yes or no.


Perhaps because he is a judge and not a stock analyst? Perhaps he wants to know all the facts and information before he makes multimillion dollar decision?
Perhaps he doesn't want to sound stupid like the stock analyst quoted in this thread?


----------



## TexasAg

Hey, all. I posted this elsewhere and may have stumped a few folks, so I thought I'd post it here and see what people thought. It's an example that I think is similar to this case.

Suppose Dell sells computers with a Dell-developed program (maybe an email program). Dells sells computer models ABC1 and XYZ2 with the Dell-developed email program on them. Dell gets sued by Microsoft and loses, because Microsoft has a patent on an email program that covers one function performed by the Dell-developed email program.

The court orders Dell to stop selling the "infringing computers: models ABC1 and XYZ2." So, Dell removes the Dell-developed email program on them, installs a completely different Dell-developed email program on them (one that doesn't perform Microsoft's patented function), and continues to sell models ABC1 and XYZ2. Could Dell be held in contempt? 

Or what if the injunction ordered Dell to shut down all "infringing computers: models ABC1 and XYZ2." So, Dell removes the Dell-developed email program on them remotely (assume this is possible) and does not shut them down. Could Dell be held in contempt? 

In both cases, I don't think Dell can be held in contempt. The injunction only applies to "infringing" computers.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> Or what if the injunction ordered Dell to shut down all "infringing computers: models ABC1 and XYZ2." So, Dell removes the Dell-developed email program on them remotely (assume this is possible) and does not shut them down. Could Dell be held in contempt?
> 
> In both cases, I don't think Dell can be held in contempt. The injunction only applies to "infringing" computers.


If the injunction ordered them to shut down the "infringing computers" and they did not shut down the "infringing computers" then yes they should be held in contempt. They could in my opinion, sell model ABC1-1 computers without the infringing software and be outside the injunction. The new models would need to be examined for more than a "colorable difference."

That having been said, I would find it highly unlikely that an injunction would require the shut down of computers for a non-essential program. Your example doesn't really fit the current scenario.


----------



## TexasAg

old7 said:


> If the injunction ordered them to shut down the "infringing computers" and they did not shut down the "infringing computers" then yes they should be held in contempt. They could in my opinion, sell model ABC1-1 computers without the infringing software and be outside the injunction. The new models would need to be examined for more than a "colorable difference."


In both cases, even the case where Dell completely removed the software from the "infringing" computers that formed the basis for the lawsuit? Why doesn't the "infringing" language take the modified Dell computers in both cases outside the injunction? It seems your position takes the word "infringing" completely out of the injunction and that the injunction instead says "computers: models ABC1 and XYZ2".



old7 said:


> That having been said, I would find it highly unlikely that an injunction would require the shut down of computers for a non-essential program. Your example doesn't really fit the current scenario.


I'm just trying to get a sense of what folks think. If you think the computers don't need to be shut down after the infringing software has been removed, I think you pretty much would have to agree that Echo doesn't need to shut down the DVRs after the infringing software has been removed (as long as Echo can show the new software is "more than colorably different).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## bidderman9

TexasAg said:


> Hey, all. I posted this elsewhere and may have stumped a few folks, so I thought I'd post it here and see what people thought. It's an example that I think is similar to this case.
> 
> Suppose Dell sells computers with a Dell-developed program (maybe an email program). Dells sells computer models ABC1 and XYZ2 with the Dell-developed email program on them. Dell gets sued by Microsoft and loses, because Microsoft has a patent on an email program that covers one function performed by the Dell-developed email program.
> 
> The court orders Dell to stop selling the "infringing computers: models ABC1 and XYZ2." So, Dell removes the Dell-developed email program on them, installs a completely different Dell-developed email program on them (one that doesn't perform Microsoft's patented function), and continues to sell models ABC1 and XYZ2. Could Dell be held in contempt?
> 
> Or what if the injunction ordered Dell to shut down all "infringing computers: models ABC1 and XYZ2." So, Dell removes the Dell-developed email program on them remotely (assume this is possible) and does not shut them down. Could Dell be held in contempt?
> 
> In both cases, I don't think Dell can be held in contempt. The injunction only applies to "infringing" computers.


As I stated earlier, I don't think it really matters since they are not going to get in to a technical discussion at the contempt trial. Therefore it will be based purely on legal issues. If they are found in contempt it will never get to the second phase.


----------



## TexasAg

bidderman9 said:


> As I stated earlier, I don't think it really matters since they are not going to get in to a technical discussion at the contempt trial. Therefore it will be based purely on legal issues. If they are found in contempt it will never get to the second phase.


So how would you decide in my example: Dell has completely removed the software from its computers that infringed Microsoft's patent. Is Dell in contempt by selling the modified computers or not shutting down the modified computers?

Seriously, I'd like to know the extent to which you think Dell in this example is prohibited or allowed to design around Microsoft's patent.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> In both cases, even the case where Dell completely removed the software from the "infringing" computers that formed the basis for the lawsuit? Why doesn't the "infringing" language take the modified Dell computers in both cases outside the injunction? It seems your position takes the word "infringing" completely out of the injunction and that the injunction instead says "computers: models ABC1 and XYZ2".


An "infringing product" is an "infringing product." If in the injunction the judge had stated "shut down the infringing products or modify the software so it no longer infringes" then that would be a remedy, but I don't see that anywhere.

Echo/Dish has had plenty of time to approach the court, since the original injunction was stayed, and offer to replace/update the software so it no longer infringes. This is too little, too late.



TexasAg said:


> I'm just trying to get a sense of what folks think. If you think the computers don't need to be shut down after the infringing software has been removed, I think you pretty much would have to agree that Echo doesn't need to shut down the DVRs after the infringing software has been removed (as long as Echo can show the new software is "more than colorably different).


No I think you misunderstood what I was saying, I don't think in your example the computers needed to be shut down in the original injunction. There were other remedies available such as removing the infringing software.

If in an injunction the only remedy is to shut down the "infringing products" within a certain time frame and you fail to shut down the "infringing products" within that time frame, expect the judge to find you in contempt.


----------



## TexasAg

old7 said:


> An "infringing product" is an "infringing product."


So then how does the fact that the product was infringing only because of the software come into play? And why doesn't the modification that completely removes the infringing software make the devices "non-infringing products"?



old7 said:


> There were other remedies available such as removing the infringing software.
> 
> If in an injunction the only remedy is to shut down the "infringing products" within a certain time frame and you fail to shut down the "infringing products" within that time frame, expect the judge to find you in contempt.


When the original injunction issued in this case, Echo was found to violate both the hardware and software claims. Infringement on the hardware claims was reversed and remanded, so that can't form the basis for the injunction. Why can't Echo remove the infringing software now?

The words in the injunction must have meaning - the "infringing" term in Dell's example injunction has to modify the "computers: models ABC1 and XYZ2" phrase, or the "infringing" term is meaningless.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## dswallow

A computer is generally accepted as being separate from both its operating system and application software.

A DVR is not; while there may be separable components, nobody sells a DVR with no software and nobody buys a DVR and replaces/installs their own software.


----------



## segaily

TexasAg said:


> So how would you decide in my example: Dell has completely removed the software from its computers that infringed Microsoft's patent. Is Dell in contempt by selling the modified computers or not shutting down the modified computers?
> 
> Seriously, I'd like to know the extent to which you think Dell in this example is prohibited or allowed to design around Microsoft's patent.


OK lets say many people would never buy a computer without email and that microsoft charges a monthly fee for email. When Dell adds the new non infringing email they pay microsoft for the years of back fees.

The problem with letting dell just update the software is this. During the years that dell was infringing if dell had not had email many people would have bought HP computes with microsoft email instead of waiting for dell to come out with email.

Most of those people would not get rid of their HP computer and buy dell just because dell has email now so microsoft would get email fees from those customers for years into the future.

Even though dell no longer infringes I believe if they want to update those boxes they need to pay ongoing damages to microsoft. The financial harm done by dells infringement to microsoft did not end with the end of the infringement.

If the dell computers are shut down then the harm did end because the customers can choose to buy a new dell computer with non infringing email or an HP computer.

I believe the the dell computers should be shut down and that dell should be forced to try to sell a new computer to those customers if it wants to keep them. Alternatively Dell could pay an ongoing fee to microsoft for those customers.


----------



## CuriousMark

So this all seems to be a novel situation. Neither side is finding case law that is good fit for the current situation. It sounds like Folsom will be making new case law when he hears from TiVo and Dish and decides.

I would speculate that Folsom will probably want to keep injunctions strong and therefore find Dish in contempt for not following the injunction on its face. However, since their workaround meets the intent of prior case law, if not the letter of it, he may temper his punishment. I can imagine him charging Dish a fine of say something like $2 per month, payable to the court (not TiVo) for each infringing DVR still operating until they are either shut down per the injunction or found to be more than colorably different in a subsequent hearing. Then leaving the decision up to Dish which way to proceed. Dish could proceed and eventually clear themselves, while paying more than they could have settled for a long time ago, they could shut down immediately and save that money at huge cost to the business, or they could try to negotiate a lower rate from TiVo and settle.

Is that imaginary future even a possibility? What would make it totally silly to even think about? What other scenarios might make sense? Lawyer types are welcome to pick apart the concept. I love the entertainment value of that and it provides a new direction for the discussions to boot.


----------



## TexasAg

CuriousMark said:


> Is that imaginary future even a possibility? What would make it totally silly to even think about? What other scenarios might make sense? Lawyer types are welcome to pick apart the concept. I love the entertainment value of that and it provides a new direction for the discussions to boot.


The judge has some leeway to punish Echo if he finds Echo in contempt. There are some limits, obviously. A judge somewhere once told Vonage they couldn't sign up new customers because they had infringed some of Verizon's patents. That lasted less than a day, I think, because the appeals court temporarily stayed it immediately and then permanently stayed it later.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## old7

TexasAg said:


> So then how does the fact that the product was infringing only because of the software come into play? And why doesn't the modification that completely removes the infringing software make the devices "non-infringing products"?


We are talking apples and oranges here. In your example Dell can remove the "infringing" software completely. Echo/Dish is attempting to modify the existing software in hopes that it no longer infringes. Big difference.



TexasAg said:


> When the original injunction issued in this case, Echo was found to violate both the hardware and software claims. Infringement on the hardware claims was reversed and remanded, so that can't form the basis for the injunction. Why can't Echo remove the infringing software now?


Echo/Dish can remove the infringing software, there is nothing saying that they can't. If they just removed the software it would in all likelihood totally disable the device seeing that software is a core element in a DVR. However, the judge gave them an option to just "disable the DVR functionality" to satisfy the injunction and not to just remove the software.


----------



## TexasAg

old7 said:


> We are talking apples and oranges here. In your example Dell can remove the "infringing" software completely. Echo/Dish is attempting to modify the existing software in hopes that it no longer infringes. Big difference.


So Dell would be allowed to remove the infringing software and not violate the injunction. But Echo cannot remove and replace the infringing software? Echo shouldn't even be given the opportunity to show that the new software is "more than colorably different" or even non-infringing?



old7 said:


> Echo/Dish can remove the infringing software, there is nothing saying that they can't. If they just removed the software it would in all likelihood totally disable the device seeing that software is a core element in a DVR.


So we agree that Echo can remove the software that infringed. We just differ on whether Echo can then download possibly non-infringing software in its place.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## kido

TexasAg,

in legal terms and in the context of an injunction, let us say we have the following two statements:

Defendant's products (collectively, "Products") models ABC1 and XYZ1
Defendant's products (collectively, "Infringing Products") models ABC1 and XYZ1

so if injunction order 1 used the first statement and made references to "Products" and the injunction order 2 used the second and made references to "Infringing Products", but they were otherwise identical, you are saying that the meaning of two injunction orders is not the same, correct?


----------



## TexasAg

kido said:


> TexasAg,
> 
> in legal terms and in the context of an injunction, let us say we have the following two statements:
> 
> Defendant's products (collectively, "Products") models ABC1 and XYZ1
> Defendant's products (collectively, "Infringing Products") models ABC1 and XYZ1
> 
> so if injunction order 1 used the first statement and made references to "Products" and the injunction order 2 used the second and made references to "Infringing Products", but they were otherwise identical, you are saying that the meaning of two injunction orders is not the same, correct?


Correct. The word "infringing" has to have meaning. The injunction can't be interpreted in a way that removes that word completely from its meaning. I believe that's why Echo insisted that "infringing products" be used in the injunction.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## kido

what about the following:

Defendant's products (collectively, "Foo") models ABC1 and XYZ1

does this have any meaning then in legal terms?


----------



## bidderman9

TexasAg said:


> So how would you decide in my example: Dell has completely removed the software from its computers that infringed Microsoft's patent. Is Dell in contempt by selling the modified computers or not shutting down the modified computers?
> 
> Seriously, I'd like to know the extent to which you think Dell in this example is prohibited or allowed to design around Microsoft's patent.


You're missing the point. It will never come to that decision. IMHO that decision will not be made in this case. If they are found in contempt, they will not shut down, they will settle. As a result, I do not think any new case law will be set here.


----------



## timckelley

kido said:


> does this have any meaning then in legal terms?


The meaning of all this is that despite how determined Dish is to not pay TiVo a red cent, the judges are gong to force their wallets wide open, and TiVo is going to help themselves generously to it. 

In fact, their own stubbornness is going to cost them a lot more than had they settled early on, which I'm sure is not going to feel good for Dish.

When that happens, I'll be watching and eating popcorn.


----------



## ZeoTiVo

TexasAg said:


> So how would you decide in my example: Dell has completely removed the software from its computers that infringed Microsoft's patent. Is Dell in contempt by selling the modified computers or not shutting down the modified computers?
> 
> Seriously, I'd like to know the extent to which you think Dell in this example is prohibited or allowed to design around Microsoft's patent.


what was the process to ensure that the change is truly non infringing?

also your example has the flaw of email not being Microsoft core business. DVR is TiVo Core busines and the DVRs from DISH did real damage to TiVo - that should also be in the judge's mind as he created the injunction and then enforces it. Since the judge rejected the language of modding as compliance then perhaps the Judge had a view of the injunction being part of the remedy for the damages.

in your email case I would think Dell could have gotten language that removing the function would bring the dell models into compliance since email is not a core function of the PC nor core business of Microsoft


----------



## Curtis

bidderman9 said:


> You're missing the point. It will never come to that decision. IMHO that decision will not be made in this case. If they are found in contempt, they will not shut down, they will settle. As a result, I do not think any new case law will be set here.


You don't think Dish would appeal a finding of contempt?


----------



## ZeoTiVo

TexasAg said:


> So Dell would be allowed to remove the infringing software and not violate the injunction. But Echo cannot remove and replace the infringing software? Echo shouldn't even be given the opportunity to show that the new software is "more than colorably different" or even non-infringing?
> 
> So we agree that Echo can remove the software that infringed. We just differ on whether Echo can then download possibly non-infringing software in its place.


you seem to be overlooking Segaily's excellent point that if a monthly ongoing fee is involved then simply allowing the infringer to change the software doe not remedy the hurt party for the monthly fees they would have gotten from the point of judgement on because the infringer did not have a non infringing product to put out back before the lwasuit was started.

lets say DISH had put out a non-infringing DVR but had to take an extra year to do so. How many extra subs might TiVo have gotten in that time period that they would still have a customer for today and thus monthly fees of x amount. Lets not forget that TiVo churn is not very great.
What is the remedy for that x amount monthly that TiVo can not get since the people are DISH users.

Perhaps part of the injuction was about turn off the found to have been infringing for some time models and make DISH compete by needing to offer a differetn DVR to those people and thus TiVo has a shot as well at them.

of course even that is not very fair to TiVo since these people are DISH users now and not at a point of deciding between cable or dbs. Still it is some remedy.


----------



## segaily

TexasAg said:


> Correct. The word "infringing" has to have meaning. The injunction can't be interpreted in a way that removes that word completely from its meaning. I believe that's why Echo insisted that "infringing products" be used in the injunction.


There were a certain number of boxes of the infringing models that were ruled not to infringe because of timing or something correct? Could not the word infringing just be in there so that those boxes would not be included as well.


----------



## TexasAg

ZeoTiVo said:


> also your example has the flaw of email not being Microsoft core business.


I must have missed the part in the cases that talk about "more than colorably different" being the standard, unless we're talking about your core business. 



ZeoTiVo said:


> you seem to be overlooking Segaily's excellent point that if a monthly ongoing fee is involved then simply allowing the infringer to change the software doe not remedy the hurt party for the monthly fees they would have gotten from the point of judgement on because the infringer did not have a non infringing product to put out back before the lwasuit was started.


Tivo is only entitled to money during the time that Echo is infringing its patent. That is in the form of damages calculated up to the point of the trial verdict, plus any post-verdict money. That was part of the status conference the other day, talking about damages since the verdict. Tivo is also entitled to an injunction to prevent future infringement.

Tivo is not entitled to any money for anything Echo does after Echo stops infringing Tivo's patent.



ZeoTiVo said:


> lets say DISH had put out a non-infringing DVR but had to take an extra year to do so. How many extra subs might TiVo have gotten in that time period that they would still have a customer for today and thus monthly fees of x amount. Lets not forget that TiVo churn is not very great. What is the remedy for that x amount monthly that TiVo can not get since the people are DISH users.


That is exactly what lost profit damages are for. Echo infringed, so Tivo lost Z number of subscribers. That is worth Z*Y number of dollars (and I believe that was part of Tivo's damages, based on the going "lifetime" subscription cost at the time of the infringement).
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## segaily

TexasAg said:


> That is exactly what lost profit damages are for. Echo infringed, so Tivo lost Z number of subscribers. That is worth Z*Y number of dollars (and I believe that was part of Tivo's damages, based on the going "lifetime" subscription cost at the time of the infringement).


That does not appear to make sense. If the damages were based off of TiVo lifetime then there would not be any extra money to calculate for the time since the judgment. I think even dish is now admitting they owe more money since the judgment they just think it should end when they loaded the new software.


----------



## TexasAg

segaily said:


> That does not appear to make sense. If the damages were based off of TiVo lifetime then there would not be any extra money to calculate for the time since the judgment. I think even dish is now admitting they owe more money since the judgment they just think it should end when they loaded the new software.


Something like $32 million in damages was due to lost profits, and the rest was based on the royalty rate.

Echo obviously owes more due to interest. Echo also owes more because of the royalty. That was the discussion of the Microsoft case during the status hearing. The court needs to decide a royalty rate post-verdict during the time that the injunction was stayed and the appeal occurred.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## segaily

TexasAg said:


> Something like $32 million in damages was due to lost profits, and the rest was based on the royalty rate.
> 
> Echo obviously owes more due to interest. Echo also owes more because of the royalty. That was the discussion of the Microsoft case during the status hearing. The court needs to decide a royalty rate post-verdict during the time that the injunction was stayed and the appeal occurred.


My point was if the damages were based on lifetime how can there be a royalty rate. It should have been a one time amount per dvr if it was in service for a day or 20 years.


----------



## TexasAg

segaily said:


> My point was if the damages were based on lifetime how can there be a royalty rate. It should have been a one time amount per dvr if it was in service for a day or 20 years.


The rules on lost profits are hard to satsify sometimes. Tivo couldn't get lost profits on all of Echo's DVRs, for example, unless Tivo could show that every one of the people who used Echo's infringing DVRs would have bought Tivos instead. A lot of damage calculations like this are based on market share - what was Tivo's market share at the time of infringement, now how many of the sales of infringing products would have gone to Tivo if the infringing product wasn't available.

Tivo was able to do it with some of Echo's DVRs, but not all. For the DVRs where lost profits were not available, they got a royalty instead.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

segaily said:


> My point was if the damages were based on lifetime how can there be a royalty rate. It should have been a one time amount per dvr if it was in service for a day or 20 years.


TiVo was granted $32.66 million lost profits on 192,708 units. No royalties accrue on these units. TiVo was granted royalty damages on the remaining 4,179,253 units.


----------



## ZeoTiVo

Curtis said:


> TiVo was granted $32.66 million lost profits on 192,708 units. No royalties accrue on these units. TiVo was granted royalty damages on the remaining 4,179,253 units.


AH - I thought they were non-infringing due to some Microsoft thing.

I see now that the lost profits due to lost subs was already accounted for. So that is not part of the injunction as I was speculating. Thanks TexasAg and Curtis.


----------



## segaily

That does make a lot of sense. Thanks to TexasAg and Curtis from me too. 

Based on that it makes sense the dish should be able to download new code. The questions then left are the ones we have always had. 

1 Who has the burden of proof the the new code is or is not infringing.

2 Is the injunction still valid if there is now a question on if they still infringe.

3 If the injunction is still valid can dish get a stay while the determination of current infringement is decided.


----------



## ZeoTiVo

segaily said:


> That does make a lot of sense. Thanks to TexasAg and Curtis from me too.
> 
> Based on that it makes sense the dish should be able to download new code. The questions then left are the ones we have always had.
> 
> 1 Who has the burden of proof the the new code is or is not infringing.
> 
> 2 Is the injunction still valid if there is now a question on if they still infringe.
> 
> 3 If the injunction is still valid can dish get a stay while the determination of current infringement is decided.


the main thing in my mind is that DISH missed questioning the injunction when the hardware was remanded back.

DISH also could not get langauage about modding software in the injunction, that that was back in the days that the hardware was in an infringing state as well.

There seems to be no standard process in place about certifying work arounds to infringing products are not infringing. Seems a new case is supposed to be opened - which seems crazy to me given the length of time it takes to get a first case through the court system.

I am still speculating that Folsom is thinking of some way to deal with injunctions without the big loophole of "hey we changed- start a new case."


----------



## TexasAg

ZeoTiVo said:


> There seems to be no standard process in place about certifying work arounds to infringing products are not infringing. Seems a new case is supposed to be opened - which seems crazy to me given the length of time it takes to get a first case through the court system.
> 
> I am still speculating that Folsom is thinking of some way to deal with injunctions without the big loophole of "hey we changed- start a new case."


There actually is - the "more than colorably different" standard. If the new software is "more than colorably different," they need a new infringement trial (or in this case, maybe a declaratory judgment trial in Delaware). If the new software is not "more than colorably different," Echo will be found in contempt, and Tivo gets some more cash.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## segaily

TexasAg said:


> There actually is - the "more than colorably different" standard. If the new software is "more than colorably different," they need a new infringement trial (or in this case, maybe a declaratory judgment trial in Delaware). If the new software is not "more than colorably different," Echo will be found in contempt, and Tivo gets some more cash.


Yes but does TiVo have to prove it is not more then colorably different or does dish have to prove it is and if that process takes some time is the injunction valid until it is determined to be different.

I am also a little confused about the fact that if the damages were awarded the way they were what the ongoing damage to TiVo was that needed the DVRs shut down in the first place. That makes me think there must be more ongoing harm then people are accounting for.


----------



## TexasAg

segaily said:


> Yes but does TiVo have to prove it is not more then colorably different or does dish have to prove it is and if that process takes some time is the injunction valid until it is determined to be different.


Not sure. I think the burden may be on Tivo to show that the modified software is not "more than colorably different" since Tivo is the one asking Echo to be held in contempt.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## Curtis

segaily said:


> I am also a little confused about the fact that if the damages were awarded the way they were what the ongoing damage to TiVo was that needed the DVRs shut down in the first place. That makes me think there must be more ongoing harm then people are accounting for.


Part of the irreparable damage is the loss of brand loyalty. Customers that might have bought a TiVo and recommended buying a TiVo to friends had Dish not infringed. These lost loyal cutomers might have also bought more TiVos later on. Stuff like that.


----------



## bidderman9

TexasAg said:


> Not sure. I think the burden may be on Tivo to show that the modified software is not "more than colorably different" since Tivo is the one asking Echo to be held in contempt.


Actually I think it would be the opposite. Echo* was found guilty of infringement. I would think the burden of proof has not shifted to them to prove that they are no longer infringing.


----------



## TexasAg

bidderman9 said:


> Actually I think it would be the opposite. Echo* was found guilty of infringement. I would think the burden of proof has not shifted to them to prove that they are no longer infringing.


Like I said, I'm not sure. Tivo would be the one alleging that the modified software still falls within the injunction.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

segaily said:


> Yes but does TiVo have to prove it is not more then colorably different or does dish have to prove it is and if that process takes some time is the injunction valid until it is determined to be different.


yes. I used standard process and meant a process that is defined and typically used (not what standard to judge by).

Seems odd to me that they find infringement and then the company can just change something and declare all is fine now, no need for the court to enforce the injunction anymore.


----------



## TexasAg

ZeoTiVo said:


> Seems odd to me that they find infringement and then the company can just change something and declare all is fine now, no need for the court to enforce the injunction anymore.


The court gets to decide if the modified is more than colorably different. If it is, then technically the modified product can't be used to find contempt, but it can still be found infringing later.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## ZeoTiVo

TexasAg said:


> The court gets to decide if the modified is more than colorably different. If it is, then technically the modified product can't be used to find contempt, but it can still be found infringing later.


and the Judge is waiting on TiVo motion for contempt to see if he needs to name a technical adviser or not.
Also the lawyers seemed to be alright with it is a legal issue and not a technical issue.

Strange indeed - why did DISH not push harder for it being a technical issue in the status meeting if they want the software lookeed at.


----------



## sbiller

Judge Folsom's order posted here (lower right corner).

[URL="[/URL]


----------



## SCSIRAID

sbiller said:


> Judge Folsom's order posted here (lower right corner).
> 
> [URL="[/URL]


Hmmmm... From my laymans persepctive, it would seem that if Judge Folsom was going to consider allowing Echo to 'slide' on the injunction due to the new software, he would have allowed the limited discovery....


----------



## TexasAg

SCSIRAID said:


> Hmmmm... From my laymans persepctive, it would seem that if Judge Folsom was going to consider allowing Echo to 'slide' on the injunction due to the new software, he would have allowed the limited discovery....


He doesn't need to let Tivo have discovery on the new software if they don't need or deserve it quite yet.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## dswallow

sbiller said:


> Judge Folsom's order posted here (lower right corner).
> 
> It never fails to amaze me the new ways in which people can come up with horribly designed web sites and then have the gall to think they should collect "donations" to keep the site alive.


----------



## dswallow

SCSIRAID said:


> Hmmmm... From my laymans persepctive, it would seem that if Judge Folsom was going to consider allowing Echo to 'slide' on the injunction due to the new software, he would have allowed the limited discovery....


If the discovery was intended to be for examining the new software I'd say the best approach is to wait until such time as examining the new software is necessary. One, it may not be necessary. If it is necessary, there may be a need for much more invasive review. It seems basically just a wasted effort to do a limited discovery without knowing the parameters one needs to follow.


----------



## Curtis

dswallow said:


> It never fails to amaze me the new ways in which people can come up with horribly designed web sites and then have the gall to think they should collect "donations" to keep the site alive.


The guy has to pay for those documents. I've made a donation to help defray the cost.


----------



## jfh3

dswallow said:


> It never fails to amaze me the new ways in which people can come up with horribly designed web sites and then have the gall to think they should collect "donations" to keep the site alive.


In fairness, I suspect the donations are to offset the cost of retrieving the documents from PACER (not cheap) and not the hosting of the site itself.


----------



## ZeoTiVo

from 6 05 order by Folsom said:


> In the interest of
> judicial economy, the Court will determine first whether EchoStar should be held in contempt for its failure to disable the DVR functionality in the Infringing Products and for its placement of new infringing DVRs as urged by TiVo or whether, as urged by EchoStar, the language of the Court's Permanent Injunction allows EchoStar to comply with the spirit of the injunction by changing the
> software so that the products no longer infringe


well that is plain enough now. The judge gets to decide our debate here on Sept 4th. Oh yah, and make an important ruling on whether DISH is at the end of their game or TiVo has to consider starting the whole thing over again.


----------



## acvthree

>>>DISH is at the end of their game 

It has never been clear to me that there is an end to the game.


----------



## sbiller

Curtis said:


> The guy has to pay for those documents. I've made a donation to help defray the cost.


That was my take as well. It would be nice if someone donated some web design services to clean up his site 

How much do you think he's paying to download the docs?


----------



## sbiller

How quickly will Judge Folsom issue a ruling? Are we talking a couple of days after the hearing?


----------



## ZeoTiVo

acvthree said:


> >>>DISH is at the end of their game
> 
> It has never been clear to me that there is an end to the game.


well in the long view- sure there is no end.
But if Judge Folsom was to rule that DISH turn off the DVRS or be in contempt on the face of the injunction after the first hearing that would bring the analysts out of the wood work and leave DISH one appeal going against them away from a very bad day for DISH.

anyone see anything of interest to the Supreme Court in this "can mod the product in the field" case that would let DISH take the contempt ruling that far? Is it legally possible to appeal a contempt ruling that far?


----------



## TexasAg

ZeoTiVo said:


> The judge gets to decide our debate here on Sept 4th.


Yep, looks like we've got some waiting to do. I think both sides have arguments, so it'll be interesting to see what happens.



ZeoTiVo said:


> anyone see anything of interest to the Supreme Court in this "can mod the product in the field" case that would let DISH take the contempt ruling that far? Is it legally possible to appeal a contempt ruling that far?


The Federal Circuit appeals court or the Supreme Court might take this case as a chance to settle an issue that is sure to come up more and more, esp. since software patents are becoming more and more common. And the contempt ruling can be appealed up the chain just like any other rulings.

Anyway, I've got to go back to work today, so I'll have to check in far less frequently than the last few days.
__________________
My personal opinions are just that. Don't rely on anything I say - I could be Bill Gates' pool boy.


----------



## bidderman9

SCSIRAID said:


> Hmmmm... From my laymans persepctive, it would seem that if Judge Folsom was going to consider allowing Echo to 'slide' on the injunction due to the new software, he would have allowed the limited discovery....


I have to agree with this. It seems that if he tought they would get past the initial phase that he would have allowed for limited discovery. This seems like a good sign for TIVO.


----------



## qz3fwd

If they are found to be in contempt, and the judge decides to throw someone in jail beacuse of it, whom would be sent to jail and what decides if someone actually goes to jail?

Is there a list of probable crow eaters somewhere?


----------



## ZeoTiVo

qz3fwd said:


> If they are found to be in contempt, and the judge decides to throw someone in jail beacuse of it, whom would be sent to jail and what decides if someone actually goes to jail?
> 
> Is there a list of probable crow eaters somewhere?


I highly doubt it would start with anyone going to jail. Hefty fines and a warning to comply fully by some date followed by an appeal by DISH with a request to stay the contempt until the appeal is dealt with is the likely outcome of a finding of contempt by DISH

-----------------------

I have made posts as well thinking the Judge saying lets not worry about discovery yet is a good sign for TiVo


----------



## bidderman9

For the legal folks out there, there has been allot of speculation about contempt and appealing. Can you appear Contempt of Court? If so, can they stay the Contempt of Court during the appeal or does it tend to continue during the appeal?


----------



## ZeoTiVo

asked and answered



bidderman9 said:


> For the legal folks out there, there has been allot of speculation about contempt and appealing. Can you appear Contempt of Court? If so, can they stay the Contempt of Court during the appeal or does it tend to continue during the appeal?





TexasAg said:


> . And the contempt ruling can be appealed up the chain just like any other rulings.
> 
> Anyway, I've got to go back to work today, so I'll have to check in far less frequently than the last few days.


----------



## CuriousMark

sbiller said:


> How much do you think he's paying to download the docs?


Eight cents per page.


----------



## bidderman9

Since I know nothing about the law, can somebody help explain this to me? Why did the judge issue the 6/5 order before TiVO even filed it's contempt motion? To the layman it seems like TiVO should file its motion first and then the Judge would issue the order.

Also, isn't TiVO's motion due some time soon?


----------



## sbiller

bidderman9 said:


> Since I know nothing about the law, can somebody help explain this to me? Why did the judge issue the 6/5 order before TiVO even filed it's contempt motion? To the layman it seems like TiVO should file its motion first and then the Judge would issue the order.


I'm not a lawyer but I think the 6/5 order was just summarizing the results of the 5/30 status conference and setting the stage for the legal proceedings to follow (i.e., the contempt hearing on 9/4).



> Also, isn't TiVO's motion due some time soon?


The speculation is that the 10 days for Chu to file the contempt motion were business days not calendar days. With that assumption the TiVo filing is due 6/13.


----------



## Daven

dswallow said:


> It never fails to amaze me the new ways in which people can come up with horribly designed web sites and then have the gall to think they should collect "donations" to keep the site alive.


Doug,

Please, if the design of the site offends you, please don't come back. If you do not want to support the cost of obtaining these documents, you do not have to.

It never fails to amaze me how some people can make horribly lame and rude remarks when they are handed a gift.


----------



## Daven

Is on my library page. Lower right hand corner.

/

All are welcome except those that find the site an eyesore.
*
MAKE SURE YOU CHECK OUT THE NEW DEDICATION AT THE TOP OF THE PAGE!*


----------



## Daven

sbiller said:


> That was my take as well. It would be nice if someone donated some web design services to clean up his site
> 
> How much do you think he's paying to download the docs?


The PACER documents are 8 cents a page. Including every page of data you generate when you do your searches. So, if you list the document history of a case, and it is one that has been going on for a while, you could have a several page listing. If a document is expected to post, like the latest one, I make several checks a day. This generates quite a few of thos 8 cent pages. Xerox corporation was built on a nickel a page. THose 8 cent charges add up pretty quick.

The unpublished hearing transcripts that are not available on pacer are a bit more. You have to purchase a copyright license from the court reporter. That is based on page count as well. The May 30th transcript was $32.00. Others, like the one for the upcoming sept 4th hearing, are/will be considerably more. Right now, for this quarter, I have a PACER bill that is around $120. Plus the 32 for the 5/30 transcript. thats around $150. I've taken in about 140 in donations. If donations exceed costs, I am planning on purchasing TiVo investment reports and studies and sharing them with the donors. I am not making a cent on this, and the time it takes is much more than negligible.

I started doing this as my contribution to the fine group of participants in the Investor Village TiVo discussion board. I was getting a lot out of the discussions, and figured instead of all of us going to PACER to get (and pay for) documents, I could do it and make them available on the web.

I know some of you have commented on the design of the page. Sorry, I am not a designer. If I have some time this weekend, I'll try to clean it up. But I put content way ahead of design on the priority list. And, as they used to say in the schoolyard at recess, "if you don't like it, lump it".

-Mainer


----------



## mtchamp

The purpose of Daven's site is to provide documents for a court case that I follow. I used to go to PACER and pay for this info and I needed to check it hourly. Now that this man is providing all the filings as they become available and keeping them on a site to be reviewed many times at no extra cost, the guy deserves nothing but praise. Thank you Mainer for your hard work and many valuable contributions from all of us who know you well throughout this lenghty litigation process.


----------



## bidderman9

Any comments on the Document Control Order? It appears to be another small victory for TiVO. :up:


----------



## MichaelK

care to elaborate for those that dont know?


----------



## nrc

MichaelK said:


> care to elaborate for those that dont know?


Maybe the folks who claim this info is readily available will dig it up and share it.

The short version is that TiVo's motion for "Docket Control" or the process and filings the parties will go through leadng up to the September hearing was accepted pretty much as written. This included limited discovery for the purpose of arguing additional damages during the stay - which Dish opposed.

Also overlooked here while some people were busy griping about someone who has done nothing but be helpful to the community was TiVo's contempt motion. Their motion cites considerable case law supporting the principle that the plain language of the injunction is to be followed and that the enjoined party does not have the option of simply deciding without the court's leave that the injunction no longer applies for whatever reason.

They also note Dish's Delaware suit as covering a matter already before the court and point out that it's another effort by Dish to create indefinite delay.


----------



## MichaelK

interesting.

thanks


----------



## bidderman9

MichaelK said:


> care to elaborate for those that don't know?


Sorry, I just assumed that everyone was watching Daven's web site since several people were whining about it. I for one appreciate his efforts. I would never have access to these documents if it were not for him. Thanks!

[URL="/[/URL]


----------



## MichaelK

Daven's website is pretty cool.

got to say- I thought tivo was hosed but their brief has some very interesting points-

first - Tivo turns Dish's own words against them- apparently in earlier proceedings they acted like the injunction was absolute and would kill them even though they had the "corrected" software being worked on even BEFORE the injunction was ever issued. So they never argued anyplace - "hey we have this fresh software can't we just use it?"

Of course in Dish's defense much of that was when the hardware claims still existed. (but after the hardware claims got tossed- why not just ask the question?)

next seems that there is precendence that DISH can't now appeal the wording of the injunction during these contempt proceedings becasue they never bothered to in the first place.



> ...collateral attack on an injunction during
> contempt proceedings is prohibited if earlier review of the injunction was available" (citing
> Ryan, 42 U.S. at 532 n.4)). As the Supreme Court has made clear, "[a] 'contempt proceeding
> does not open to reconsideration the legal or factual basis of the order alleged to have been
> disobeyed and thus become a retrial of the original controversy....


this one's a fun quote seems to fit Dish's actions pretty well-



> "If a party can make himself a judge of the validity of orders which
> have been issued, and by his own act of disobedience set them aside, then are the courts
> impotent, and what the Constitution now fittingly calls the 'judicial power of the United States'
> would be a mere mockery." Gompers, 221 U.S. at 450


this is a quality gem too:



> EchoStar's strategy is clear: stay one step ahead of the law,
> and the courts will never catch up.


MAybe that should be the tagline on their lawyers cards?

also seems previous cases with combative defendents taht judges have gotten so fed up that they have ordered the infringers not to make ANY products untill getting OK from the court. And those orders have been upheld on appeal. Apparently if DISH pushes too hard the judge actually could ban them from deploying ANY NEW DVR's untill they get permission.

here's another nice kick in the pants quote to make folks chuckle:



> EchoStar's claim that it was complying with the spirit of the injunction presumes that
> EchoStar intended to comply this Court's Order. But in other cases, EchoStar has chosen not to
> comply with court orders, further suggesting that it is doing so here, also.


then they give 4 examples of judges busting DISH in the past for acting like scum. One of which is the distnace network case- and tivo points out that that was only like 300,000 subs to piss off and this is potentially 3 million subs to piss off. (and I'd add that the 300,000 subs with illegal distant networks couldn't go to any other provider to get them, but the 3 million subs can all go to another provider for a dvr.)

then tivo gives an example how the georgia court already got on DISH for acting scummy "playing legal shell games"

so they sum it up:



> EchoStar's argument that it should not be held in contempt of court because of a good
> faith belief that it had designed around TiVo's patent should be considered in light of EchoStar's
> prior instances of disregard for court orders and its lack of candor with the Court in this case.


or less politely one might say- 'dish is a sack of lying excrement not to be believed'


----------



## MichaelK

ought oh....

Dish's "better then tivo" ads might come back to haunt their pocketbook.

seems tivo's discovery request asks for :



> Provide documents sufficient to determine on a monthly basis during the Stay
> Period EchoStar's total expenditure on advertising that mentioned TiVo and/or DVRs


I think the judge's orderd schedule says dish has to provide the discovery that tivo asked for?


----------



## Curtis

> ...collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available" (citing Ryan, 42 U.S. at 532 n.4)). As the Supreme Court has made clear, "[a] 'contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy....


Dish seems to be happy with the injunction. TiVo on the other hand isn't happy that the injunction doesn't prevent modifications.

Modifying a DVR is a lawful activity. There is no requirement to change model numbers when a product is modified.



> Rule 65(d) "requires an injunction to prohibit only those acts sought to be
> restrained," namely, "infringement of the patent by the devices adjudged to infringe and
> infringement by devices no more than colorably different therefrom." International Rectifier, 383 F.3d at 1317. In other words, "an injunction cannot impose unnecessary restraints on lawful activity." Riles v. Shell Exploration & Prod. Co., 298 F.3d 1302, 1311 (Fed. Cir. 2002).





> Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement.
> 
> link





> An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be too insubstantial to avoid contempt.
> 
> link





> "Turning first to the question of the judgment of contempt itself, we agree, of course, that the issue in contempt proceedings is violation vel non of the injunction, not patent infringement. Nevertheless, *devices which could not be enjoined as infringements on a separate complaint cannot possibly be deemed enjoined as infringements under an existing injunction in contempt proceedings*. Accord MAC Corp. of America, 767 F.2d at 886, 226 USPQ at 518, " 'fair ground for doubt' on infringement." (emphasis added). Infringement is the sine qua non of violation of an injunction against infringements.
> 
> The authorities are uniform that the modified device must be an infringement to find contempt of such an injunction. See, e.g., Panther Pumps Equipment Company, Inc. v. Hydrocraft, Inc.,"
> 
> link


----------



## ZeoTiVo

Curtis said:


> Dish seems to be happy *to ignore the *injunction. TiVo on the other hand isn't happy * with Dish's interpretation of *the injunction *that *doesn't prevent modifications *from dragging the case out forever and make court orders meaningless.*.


fixed your quote above 


> Modifying a DVR is a lawful activity. There is no requirement to change model numbers when a product is modified.


sure but continuing to sell a DVR that infringes would be. How does anyone ensure the code changes are enough _in a way that is fair to TiVo_ eg not take a whole new trial and 5 years in the courts.


----------



## Curtis

ZeoTiVo said:


> sure but continuing to sell a DVR that infringes would be. How does anyone ensure the code changes are enough _in a way that is fair to TiVo_ eg not take a whole new trial and 5 years in the courts.


I wish I knew. The "not more than colorably different" part can be determined in a contempt hearing instead of a full trial but the outcome could be appealed. Hopefully the appeals court would not stay the contempt finding (if any) during the appeal. If there is more than a colorable difference it would take a new trial to resolve but maybe it should be that way. It's just too bad that trials take such a long time.


----------



## ZeoTiVo

Curtis said:


> it would take a new trial to resolve but maybe it should be that way. It's just too bad that trials take such a long time.


you have to admit that if it takes a decade to deal with patent infringement then it does become ridiculous to the point of absurdity.

Sure the reform would have to start in the patent office with some eye towrd tightening up patent awards so people can not lock each other out of markets

but what hope does a small inventor really have anymore?
TiVo is small but still if DISH can take TiVo out - then what worth is a patent or innovation?


----------



## Curtis

TiVo will be getting $100+ million in a couple of months. It's not like they've made out so badly.


----------



## ZeoTiVo

Curtis said:


> TiVo will be getting $100+ million in a couple of months. It's not like they've made out so badly.


there is that to be sure. The system is not entirely broke, but DISH is cetainly exposing every glitch in the patent infringement laws which may allow them to continue to inflict damage while skirting by on the issue of still infringing or not and forcing TiVo to fork over piles more money to start the whole thing over again. All the while TiVo loses subs and DISH adds subs.


----------



## Curtis

ZeoTiVo said:


> there is that to be sure. The system is not entirely broke, but DISH is cetainly exposing every glitch in the patent infringement laws which may allow them to continue to inflict damage while skirting by on the issue of still infringing or not and forcing TiVo to fork over piles more money to start the whole thing over again. All the while TiVo loses subs and DISH adds subs.


There is always the possibility that they really no longer infringe. If it turns out they've cried wolf, especially on the "colorably different" part the judge could impose a pre-approval clause in the injunction as has been upheld in other situations where the defendant has been proven to try to game the system.


----------



## vman41

Why are they not paying the ordered monetary damages? Isn't that a separate complying issue from the injunction on operating the infringing boxes?


----------



## Curtis

vman41 said:


> Why are they not paying the ordered monetary damages? Isn't that a separate complying issue from the injunction on operating the infringing boxes?


It will just be another couple of months. The money is in an escrow account.


> "As of April 15, 2008, EchoStar has placed approximately $103.8 million in escrow during their appeal of the Company's trial court victory. Pursuant to the terms of the escrow agreement between EchoStar and the Company, *the Company shall receive payment of these escrowed funds if a writ of certiorari is not filed or is denied or if certiorari is granted but then the judgment in favor of the Company is affirmed in whole or in part by the Supreme Court*. The escrow funds encompass damages through September 8, 2006 and related interest through August 16, 2008 only, and do not reflect damages since that date. "


----------



## bidderman9

I assume you meant April 16th. It seems like they should be required to escrow additional money to cover the appeal process.


----------



## bidderman9

Looks like Mainer got banned. Got into some kind of beer with Mr. Swallow. Don't know what is going on here, but I have been far worse personal attacks coming from other people who never got banned.

I for one appreaciated his input as well as his web side. Sad day for the forum...


----------



## Tivoli

bidderman9 said:


> Looks like Mainer got banned. Got into some kind of beer with Mr. Swallow. Don't know what is going on here, but I have been far worse personal attacks coming from other people who never got banned.
> 
> I for one appreaciated his input as well as his web side. Sad day for the forum...


Ditto. He has all the documents on his site including the documents that got filed today:

/


----------



## jfh3

Can someone with more legal background than I comment on Folsom's signing of Tivo's proposed order yesterday? Does the fact that Tivo signed it mean that all the items marked "Not Agreed" are now actually ordered by the court (i.e. all the discovery that Tivo wanted of Echostar that Echostar objected to)?


----------



## fasTLane

+1


----------



## SeanTivo

Maybe he was pretending to be a lawyer here like he does on the IV board.


----------



## timckelley

bidderman9 said:


> Looks like Mainer got banned. Got into some kind of beer with Mr. Swallow. Don't know what is going on here, but I have been far worse personal attacks coming from other people who never got banned.
> 
> I for one appreaciated his input as well as his web side. Sad day for the forum...


It sounds like Mainer created a second ID (i.e. Mainer is the 2nd ID), which is strictly forbidden here, especially when the other ID is under a current ban, so this should explain why he was banned. I think but am not sure, that creating a 2nd ID when the first is banned might be subject to a permenant ban. But I could be wrong on that.


----------



## mtchamp

From what I saw before posts were deleted, it seemed like a fair fight and may have included more posters than I can remember, because of deleted posts.

Mainer never would have lasted here anyway, because this is not the right forum for the topic at hand. Too many casual observers with no vested interest in TiVo Inc and little to do but pick a fight. 

In any case, if you want to be part of a similar discussion including Mainer and stock talk, then go to Investor Village TiVo Board. This whole thread boarders on stock talk and isn't that banned here anyway.


----------



## bidderman9

timckelley said:


> It sounds like Mainer created a second ID (i.e. Mainer is the 2nd ID), which is strictly forbidden here, especially when the other ID is under a current ban, so this should explain why he was banned. I think but am not sure, that creating a 2nd ID when the first is banned might be subject to a permenant ban. But I could be wrong on that.


I agree but it has been pointed out that several other users have 2 ID's and they were never banned. Assuming that is why he was banned, then they should be enforcing it across the board, not selectively enforcing it.


----------



## ZeoTiVo

mtchamp said:


> This whole thread boarders on stock talk and isn't that banned here anyway.


umm the topic is the infringement suit against Dish by TiVo. The outcome has an impact on both companies stock of course, but the purpose of the thread is to follow the specifics of the trial.

If people had stayed on that topic and not gone on tangents about others web sites and so forth then all would be fine. I say we just get back to that topic and just let the thread be until some news on topic comes up.

We are instead questioning moderator decisions which will certainly lock the thread if it keeps up.


----------



## justapixel

Both parties in the fight got suspensions. One of them came back during the suspension with a 2nd ID for the sole purpose of flaming the person he disagreed with. Which - if you read the rules (and you should) - means both IDs will be permanently banned. So, he is gone. The other person is welcome back.

I removed all links to the document site because the person used one of our member's avatar in a degrading manner. 

A while back I gave a warning in this thread about the behavior expectations and the rules. Now people are "questioning the moderators" publicly instead of via PM, and still arguing with each other. 

Since my request for people to be courteous and follow the rules of this forum have not been honored, since numerous forum rules have been broken here, and since we mods have had to do significant post deletions and thread clean up, I will now close this thread.


----------

