TIVO vs E*

[ScoBuck]

Sigh...


...And your usual game of weaselwording and convoluting the issue with nonsense does not change that.

Is this your usual game of flaming and name-calling? Knock it off please.

[jacmyoung]

Well said

And that was precisely what I meant, and I think what Greg meant too--legal proof. Of course the Court has the final say in a legal dispute. Which is why I said if Vampz26 wanted to express his view that judges are no good, he should start a new thread.

In this thread, we are discussing a legal case, in a legal dispute in front of the judges, parties naturally agreed to let the judges (in the District Court, the Circuit Court and all the way to the the Supreme Court) make the final call who is correct in their legal dispute.

Therefore I do not see why someone was surprised and felt compelled to argue against the notion that both Greg and I are willing to let the judge(s) determine who is right who is wrong. And additionally, I still do not see how my providers information has anything to do with this case.

[vampz26]

Is this your usual game of flaming and name-calling? Knock it off please.

My word have been very clear and concise Sco. With all do respect your reprimand is misguided.

And while you are in the E* forums. Do something about the D* trolls, will ya? Thanks. Your ok.

[vampz26]

Lost? The War-Zone is a few forums down from here.

Of course not.

Its just that I am an E* sub in an E* forum. I'm not lost. Are you?

[Rey]

Of course not.

Its just that I am an E* sub in an E* forum. I'm not lost.

vampz am i actually looking at you argue with your self?

[vampz26]

no...Just attempting to point something out to Sco. lol

just messed up the reply because I was using a blackberry.

[Rey]

no...Just attempting to point something out to Sco. lol

just messed up the reply because I was using a blackberry.

for a moment i thought you lost your mind. lol!!!

alrighty then........

[Thomas22]

Think about it. All DISH/SATS has to do is change one byte of code so they can ignore a court order.

Actually, a company can ignore a court order without changing a single line of code. Situations like that are what contempt of court hearings are for. If there is no change or the change is merely colorable then contempt can be found. Otherwise, contempt can't be found.

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. KSM

[msmith198025]

vampz am i actually looking at you argue with your self?

Lord I was wondering that myself

[Greg Bimson]

Actually, a company can ignore a court order without changing a single line of code. Situations like that are what contempt of court hearings are for. If there is no change or the change is merely colorable then contempt can be found. Otherwise, contempt can't be found.

But technically, that only applies to "new products" and new constructs. For products never adjudged before the court, both infringement and colorable difference must be found. KSM tells a wonderful story; it is a shame that a few sentences are being used:

Paragraph 7:
Having enjoined the infringer, a patent owner who is confronted with another possible infringement by that party in the form of a modified device will very likely seek to invoke the power of the court to punish the adjudged infringer for contempt in violating the court's injunctive order. [...]

Paragraph 8:
A civil contempt proceeding for violation of an injunction issued after patent litigation, while primarily for the benefit of the patent owner, nevertheless, involves also the concept of an affront to the court for failure to obey its order. As explained in American Foundry & Manufacturing Co. v. Josam Manufacturing Co., 79 F.2d 116, 118, 26 USPQ 338, 339 (8th Cir.1935): A decision adjudging infringement necessarily finds the particular accused device to be within the valid boundary of the patent. The decree usually carries a prohibition against further infringement--not as to any and every possible infringement, but as to the particular device found to be infringement and as to all other devices which are merely "colorable" changes of the infringing one or of the patent. [...]

Paragraph 9:
In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings.

Paragraph 10:
In MAC Corp. of America v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 226 USPQ 515 (Fed.Cir.1985), this court affirmed the denial of proceedings in contempt where the district court found a "fair ground of doubt" that the injunction against infringement had been violated because of differences between the adjudged and accused devices. In so holding, the court followed the Supreme Court's directive in California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 622, 28 L.Ed. 1106 (1885):

Paragraph 11:
Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct.

Paragraph 12:
Thus, not all subsequent infringements by an enjoined party are deemed in contempt of the court, even though an injunction may be written broadly enjoining, as in California Paving, further infringements.

Paragraph 13:
While the courts have been uniform in acknowledging that contempt does not embrace all infringements by modified devices, there has not been uniformity in the actual standards for determining (1) when contempt proceedings will be entertained, and (2) when contempt will be found. These are separate questions and the standard for determining the answer to each must be addressed in this appeal.

The lynch-pin of DISH/SATS case is KSM says a modification must be addressed. However, KSM is about devices that have never been adjudged before the court.

The four (now three) million devices subject to the disable order have been before the court. The contempt matter in TiVo is not about continuing infringement as KSM was; the contempt matter in TiVo is about ignoring the disable order, which does not have any language regarding continuing infringement.

This is NOT about the "new constructs". This is about the devices which were already found as infringements. And they certainly have NOT been disabled.

The TiVo contempt motion is only about the products that have already been adjudicated as infringements. If DISH/SATS were so keen to change the receivers, they should have been just as keen to have Judge Folsom rule that the workaround could put the at-risk receivers out of scope of the injunction.