TIVO vs E*

[Greg Bimson]

I'll give it up. I am simply providing the alternate view that DISH/SATS can walk free and clear from the injunction. If it were such a slam dunk that DISH/SATS was not in contempt, the decision would have been out already.

[TheKrell]

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

Well I don't agree, and I hope both will continue to educate me on the fine points of the law.

[jacmyoung]

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

No contempt was found in 2006, E* was found guilty of infringement, not in contempt of any order back then. When it comes to contempt of the order, violation on the face of the order is not enough, infringement must also be found, not something I said, but the courts.

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.

A modification if susseccful, can make those devices no longer infringe, and in the patent cases, that will be enough to be allowed to remain in the marketplace.

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.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.

Footprint2.0 was a product of software and hardware, just like the E* DVRs, and yes in both cases, the software was the culprit, not the hardware.

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.

Of course the Bartow case was never about the eggs, but the manufacturing process. The point is it was modified in the field, after the process was found to infringe and ordered to shut down, and after the modification, the same process still in the field was allowed without a contempt.

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.

E* motioned the court on 5/30, then in their several filings in June as well. So were both the infringers in the Footprint 2.0 and Betow Food cases, after the injunctions were in full force, and after the patentees brought up the contempt motions to the court. It always worked that way, it is up to the patentee to initiate a contempt proceeding, then the infringer motion to oppose, citing their desgin around as a legit work around of the patent.

Nothing is different here.

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

A simple download allowed the Foorprint 2.0 servers (which were ordered to stop) to continue to service without any interruptions.

If the devices no longer infringe, they are out of the scope of the injunction, even though they were one time adjudicated to have infringed. The only things an injunction have effect on are things that still infringe, you know the quotes by the courts on this particular issue, I will not repeat them. There is no change of the past verdict that those devices had infringed, the only determination now is whether there is still infringement going on today.

[jacmyoung]

I'll give it up. I am simply providing the alternate view that DISH/SATS can walk free and clear from the injunction. If it were such a slam dunk that DISH/SATS was not in contempt, the decision would have been out already.

E* did not walk free and will not in the future, E* paid TiVo $74 million plus interest already, and will pay more for the continued infringement in 2006 and 2007, before the design around was implemented.

TiVo's "face of order" violation is in fact a slam dunk argument, if it had merit, the contempt would have been easy and the decision would have been out already. A "face of order" violation needs no looking any deeper than the letter of the order, but it is more than that, in the patent cases that is, that is the reason why the decision is not a slam dunk one, because merely a "face of order" violation is not enough.

[jacmyoung]

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

I do understand your point. Sometimes though many people may be just tuned in, I think both Greg and I have been repeating our arguments for those who did not follow our past rounds.

But for those who had read over an over, it can be annoying.

At least both of us had managed to keep it civil.

[HDRoberts]

I do understand your point. Sometimes though many people may be just tuned in, I think both Greg and I have been repeating our arguments for those who did not follow our past rounds.

But for those who had read over an over, it can be annoying.

At least both of us had managed to keep it civil.

Thanks. It does seem to be a lot of rehashing, especially for followers of the other site. The fact is only the Judge's position matters now.

The one thing I wouldn't mind hearing from both of you is why are you such "fanboys" for your respective positions?

[jacmyoung]

...The one thing I wouldn't mind hearing from both of you is why are you such "fanboys" for your respective positions?

You might be surprised both of us also said if the judges proved either of us wrong, Greg or I would admit wrong without any problem. Hardly a fanboy mentality

[vampz26]

Why do you want to know?

Because I think we all would like to know...

You did dump E* a while ago, right?

[Greg Bimson]

Oh, I'll admit that my position is wrong if Judge Folsom does not grant the contempt motion.

However, it is that my belief in the justice system will be shaken.

The simple fact is that for any piece of equipment which can be modified once sold and installed, which is most consumer electronic devices nowadays, there will be no way a patentee will ever be able to hold an infringer's feet to the fire, even with an injunction. That is severely flawed.

Think about it. All DISH/SATS has to do is change one byte of code so they can ignore a court order. Even if DISH/SATS modifies a billion lines of code, it doesn't change the finding of infringement of near 4 million receivers. The injunction orders DISH/SATS to shut down those receivers ruled infringing. If DISH/SATS wants to keep them on, they do what the egg processor did: move the court to find their new process no longer infringes.

In this case, DISH/SATS still has not moved the court to consider the changes made to the receivers found infringing. They are attempting to create a technicality so they can run an end-around on the legal system. If they are successful, everyone will follow this blueprint, and intellectual property everywhere will take a serious hit.

[vampz26]

You might be surprised both of us also said if the judges proved either of us wrong, Greg or I would admit wrong without any problem. Hardly a fanboy mentality

...except for the fact that no judge anywhere can prove either of you right or wrong. They can only concur with your opinion and you theirs.

Now...if you wish to settle your differences on the basis of a judges decision accepting it as final, thats fair enough and probably the correct way to go. However don't ever assume that in case such as this, which is only being settled by an opinion and interpretion of the law and not an exact science by any stretch of the imagination, is proven one way or another on the basis of the ruling. Its one mans opinion which is no more or less valid than your own. Just that he is in a position of power to force his opinion on others and...well...we're not.

Innocent men to to jail every day, excellent fathers need to fight for their kids every day in divorce because of judges opinions being...well...wrong, so in no way will a judges opinion prove anything. But in this particular case...if it stops jacmyoung from trolling E* forums looking for trouble and you all can use the judges opinion for establishing a common ground...I say go for it! Excellent idea.