TIVO vs E*

[navychop]

I am not very well versed in these things so, I will ask. Since tivo is a publicly traded company, what would stop E* from buying a controlling amount of their stock?

I doubt that there are enough shares ready to be sold to give Dish/Echostar/Charlie a controlling interest. There seems to be some thought that TIVO may pay off after all, and some people may be holding out for that. That must be about the only reason anyone would hold TIVO stock- the long shot payoff. It's pretty clear their business plan (charging monthly fees for EPG info) failed.

In any event, I believe that to acquire more than a certain percentage of a company's stock, there are filing requirements or some such. That would give TIVO opportunity to mount an opposition. But I don't think Charlie wants to buy them piecemeal anyway. If he's to buy them, it will probably be in some offer negotiated with the TIVO board.

[CuriousMark]

What I meant was even if TiVo does not throw in the towel, it will still be the end of this case. TiVo can go after the new design around, but it will have to be a new trial, independent of the current case.

It has been posted by many people, including in conversations with you, that the new action can be included in the current case as a new motion, or brought as a new action in the same court, since it already has the background on the case. Even if that doesn't happen and the venue ends up moving to, some place like Delaware, it wouldn't mark the end of the litigation between both parties. It would only mean more time for the new court to come up to speed and therefore even further delays. So while this phase of things would end, unless one side or the other throws in the towel, there will be litigation happening for a potentially very long time.

In response to an earlier post, TiVo now has a hundred million war chest, thanks to Echostar, that will keep them in the game for a very long time if they so choose.

[Greg Bimson]

TiVo can go after the new design around, but it will have to be a new trial, independent of the current case.

Okay. So let's set the table...

About four million of DISH/SATS' DVR's have been found guilty of infringement of a patent, including Joe Blow's four-year old 501 DVR.

Yet there is no case law that allows for a retrial of devices already found infringing. One cannot find infringement again on a device that has already been found as an infringement.

In other words, unless this is some exceptional case, the four million DVR's in question cannot be "tried again", as they've already been found guilty of infringement. Just because there has been some modification of some code does not change the fact the DVR's have already been found guilty of infringement.

They will not be retried.

[jacmyoung]

It has been posted by many people, including in conversations with you, that the new action can be included in the current case as a new motion, or brought as a new action in the same court, since it already has the background on the case. Even if that doesn't happen and the venue ends up moving to, some place like Delaware, it wouldn't mark the end of the litigation between both parties. It would only mean more time for the new court to come up to speed and therefore even further delays. So while this phase of things would end, unless one side or the other throws in the towel, there will be litigation happening for a potentially very long time.

In response to an earlier post, TiVo now has a hundred million war chest, thanks to Echostar, that will keep them in the game for a very long time if they so choose.

The "new action" quoted by the judge meant a new trial not a new motion under this current case, trust me on this one. You can't have a new motion that is part of the current case in the DE court, the DE court will only preside over the new trial which E* filed on 6/1, but if the DE court denies the E* case, TiVo can file a new case with Judge Folsom again, otherwise the new case will have to be fought in the DE court.

Judge Folsom was fully aware of the situation.

As far as whether each party has enough money to fight on, I don't ever think along this line, clearly Charlie has the resources to fight on, to me it is not so relavent at this moment, what is really important is how the judge will make his ruling and his own justifications, after that each party will try to decide whether they want to fight on and how much chance the continued fight will benefit them or not.

[jacmyoung]

Okay. So let's set the table...

About four million of DISH/SATS' DVR's have been found guilty of infringement of a patent, including Joe Blow's four-year old 501 DVR.

Yet there is no case law that allows for a retrial of devices already found infringing. One cannot find infringement again on a device that has already been found as an infringement.

In other words, unless this is some exceptional case, the four million DVR's in question cannot be "tried again", as they've already been found guilty of infringement. Just because there has been some modification of some code does not change the fact the DVR's have already been found guilty of infringement.

They will not be retried.

Don't argue with me on this one, argue with the court. You only need to listen to what the judge said on 9/4, when he told the E* attorney he could still find E* in contempt, if the design around was only colorable. He did not mention any other basis on which he could still find E* in contempt.

I have argued with you over and over that the adjudicated devices (devices adjudicated to be infringing devices) can be modified to be out of the scope of the order, you disagreed, there is no need to continue on that particular point, we just have to agree to disagree.

What I am trying to point out now is, what the judge had said on 9/4 clearly demonstrates that my argument is likely correct. Many TiVo supporters insisted that what the judge said on 9/4 meant very little, they wanted to believe the judge was really thinking something else.

That is fine, I have no problem if people want to read the judge's mind, I don't, I only read what he actually said, and speculate based on that.

[Greg Bimson]

Don't argue with me on this one, argue with the court. You only need to listen to what the judge said on 9/4, when he told the E* attorney he could still find E* in contempt, if the design around was only colorable. He did not mention any other basis on which he could still find E* in contempt.

Only because DISH/SATS was using KSM as the basis of their argument, and DISH/SATS counsel McElhinny would not concede that point. When Judge Folsom asked Mr. McElhinny if he understood that he could still be found in contempt, McElhinny did not answer, so Judge Folsom answered for him regarding the extent of the design around, on the basis of using KSM.

KSM is the starting point for the house of cards that DISH/SATS built. As the KSM case has only ever applied to products never put before the court, it does not apply to devices already adjudicated as infringements. Therefore, if Judge Folsom's decision does not use KSM as case law, then the motion for contempt will be granted.

However, not long after Judge Folsom mentioned using KSM, because of a lack of discovery, Judge Folsom basically slammed the door shut on McElhinny. Judge Folsom mentioned that the lack of discovery means when using DISH/SATS arguments against contempt, he'd have to take DISH/SATS side of the story without any counter from TiVo. You know, because DISH/SATS has obtained outside counsel regarding a design around and because DISH/SATS technical advisors signed affadavits Judge Folsom can render a decision. However, DISH/SATS had both opinion from outside counsel and technical adivsors back in April, 2006, and DISH/SATS were still found to have 4 million DVR's which infringe on TiVo's patent.

TiVo brought up a fairly compelling argument, as well. A court order cannot be ignored. In this case, it obviously was.

[jacmyoung]

Only because DISH/SATS was using KSM as the basis of their argument, and DISH/SATS counsel McElhinny would not concede that point. When Judge Folsom asked Mr. McElhinny if he understood that he could still be found in contempt, McElhinny did not answer, so Judge Folsom answered for him regarding the extent of the design around, on the basis of using KSM.

Yes, on the basis of KSM, no other basis was ever brought up by the judge, because KSM is the only basis all contempt issues in patent cases are based on, as long as there is design around. The judge could easily told him I could still find E* in contempt, you know for violating the face of my order as TiVo said, but he did not say that. As I pointed out, you like to think the judge could have said that, I like to read only what the judge had said, not what I had hoped what he could have said.

KSM is the starting point for the house of cards that DISH/SATS built. As the KSM case has only ever applied to products never put before the court, it does not apply to devices already adjudicated as infringements. Therefore, if Judge Folsom's decision does not use KSM as case law, then the motion for contempt will be granted.

Not at all, as I have used two cases, the Footprint2.0 and the Food process case, both were based on KSM, in both cases the adjudicated products or process were just that, adjudicated in the trials and found to infringe, and after in-the-field modifications of the same products and process, no contempt.

KSM is the starting and the end point of such cases.

However, not long after Judge Folsom mentioned using KSM, because of a lack of discovery, Judge Folsom basically slammed the door shut on McElhinny. Judge Folsom mentioned that the lack of discovery means when using DISH/SATS arguments against contempt, he'd have to take DISH/SATS side of the story without any counter from TiVo.

The judge did say that, but then that was because he thought TiVo disputed E*'s evidenece of the new software, but if you read on, when McElhinny said it was interesting your honor...the judge suddenly realized TiVo might not have questioned the evidnece from the initial limited discovery. TiVo accepted the evidence from the limited discovery, the judge did not even think TiVo could have done that but realized such after McElhinny pointed out to him. Meaning the evidence was sufficient for both E* and TiVo to make their own conclusions, only their conclusions were opposite of each other. In such case, if the judge can also make his conclusion on the same evidence, then there will be no need for another discovery because there is no dispute on the evidence, only the conclusion. The judge only needs to settle the dispute on the conclusion, not the evidence.

A discovery may be needed if there is dispute on the evidence.

You know, because DISH/SATS has obtained outside counsel regarding a design around and because DISH/SATS technical advisors signed affadavits Judge Folsom can render a decision. However, DISH/SATS had both opinion from outside counsel and technical adivsors back in April, 2006, and DISH/SATS were still found to have 4 million DVR's which infringe on TiVo's patent.

That tells us the judge does not rely on one side of the argument of course, but it goes both ways. Just because the jury agreed with TiVo during the trial, dose not mean the judge must agree with TiVo now. The jury found E* willfully infringed, and TiVo argued for treble and attorney fees based such jury's finding, yet the judge denied TiVo's motion.

TiVo brought up a fairly compelling argument, as well. A court order cannot be ignored. In this case, it obviously was.

The only problem is, many infringers in the past had "ignored" the orders, as in cases E* cited, yet found not in contempt, because of the design around. TiVo never had a case where an infringer was found in contempt even after a successful design around, none. When the judge asked TiVo's attorney what cases they could cite, the closest one, as the judge called it, was a case that the infringer disagreed with the order but did so too late. That case simply does not apply here, because as the E* lawyer pointed out, E* never disputed the order, E* believed the order was correct and they had been in full compliance of the order.

And I agree, E* did not ignore the order, they complied with the order, and the judge will likely find a way to agree with E*, just as in the StarBrite case when the court found a way to agree with the infringer, even though it was clear the infringer did not follow the letter of the order. Because when it comes to a contempt in a patent case, unlike any other cases, mere violation of the face of the order is not enough, infringement must also be found, before a contempt may be handed down.

TiVo had cited no single case to support their "face of order violation" argument, because TiVo failed to prove with clear and convincing evidence that the 4 million E*'s DVRs on the list still infringed after the design around.

[Greg Bimson]

Because when it comes to a contempt in a patent case, unlike any other cases, mere violation of the face of the order is not enough, infringement must also be found, before a contempt may be handed down.

And because contempt was found on those devices in April, 2006, a mere violation on the face of the order is fine.

Just because a modification exists does not change the fact that 4 million DVR's in customer's hands were found as infringements. A modification by DISH/SATS does not change the legal status that those devices were found infringing.

DISH/SATS has been framing the new software as "new product". Fine; download this "new product" (because the new product is only software) and disable the original product found infringing, which was the receiver.

Not at all, as I have used two cases, the Footprint2.0 and the Food process case, both were based on KSM, in both cases the adjudicated products or process were just that, adjudicated in the trials and found to infringe, and after in-the-field modifications of the same products and process, no contempt.

The Footprint 2.0 case dealt exclusively with a software-based service which was found to infringe. DISH/SATS has only filed one motion to the court, which they abandoned.

The Bartow Foods case dealt exclusively with a process to pasteurize eggs, where the product is not the infringement, but the result of the infringement. The infringer filed several motions with the court before the contempt motion by the patentee was denied.

The TiVo case is about 4 million boxes which infringe upon a process. Just because those boxes were modified does not change the fact that the boxes were found to infringe, and subject to a disable order. And like the egg processing case, it is up to the infringer to motion the court to remove product found infringing from the scope of an injunction.

A simple download does not change boxes ruled infringing as no longer under scope of the injunction.

[HDRoberts]

Won't both of you two give it up already and let the judge rule?

[tomcrown1]

Won't both of you two give it up already and let the judge rule?

I agree!!!