TiVo Sued: A Taste of Their Own Medicine

[Greg Bimson]

To say "cannot sell, offer to sell or use after the injunction takes effect" is the same as saying "to disable the DVR functions before the injunction takes effect", the cut off time is the same, the date the injunction takes effect, after which cannot have the DVR fucntions, or cannot sell, offer to sell or use.

AGAIN, and I don't know why this is difficult:

The injunction in i4i v. Microsoft does not address a single product sold or installed before the injunction became active. Those products are not subject to the injunction.

The injunction in TiVo v. EchoStar orders Echostar to complete one very specific action regarding installed products once the injunction became active.

If after the date, the DVRs functions are still used, you say it is a violation, then you must also insist, after the date it is still sold, offered to sell or used, it is also a violation.

You need to go back and look at a case you cited once before: StarBrite v. Gavin Products.

A product which is modified to avoid an injunction and then sold must be analyzed for colorable difference and infringement before it can be considered in contempt of an injunction order prohibiting sales of infringing products. That's the KSM analysis.

What you are failing to even understand are the two distinct issues in TiVo v. EchoStar:

1) the products found infringing, installed before the injunction became active are subject to a disable order, and Judge Folsom found contempt for failure to disable DVR functionality.

2) the products modified or sold after the injunction became active were found both merely colorably different and infringing, and Judge Folsom found contempt for sales of infringing devices.

And I've argued that point everywhere. Joe Blow's four year old DVR 625 and John Doe's one year old DVR 625 are similar in every way, shape and form, except Joe Blow's DVR is subject to a disable clause. In order to ensnare John Doe's DVR into the injunction, it must be analyzed for both colorable difference and infringement.

So in order to ensnare Word 2010 into the injunction, it must be analyzed for colorable difference and infringement.

[Greg Bimson]

On the other hand, if you say it is ok to sell, offer to sell or use Word as long as it no longer has the “infringing custom XML editor” (even though it still has the custom XML editor), since the injunction only prohibits the Word “with the infringing custom XML editor”, then it is ok to continue to have the DVR functions as long as the DVRs are no longer “Infringing products”, since the injunction only required the DVR functions disabled “of the Infringing Products”, not if the products are no longer infringing products.

AGAIN:

If Microsoft modified the XML editor for Word 2010, it is no longer the "infringing custom XML editor."

That is completely separate from an order to disable those products which were installed. "Infringing Products" was defined by the court as eight models of DVR. Just because DISH/SATS wants to change the definition of "Infringing Products" to avoid an injunction doesn't escape the fact that "Infringing Products" only has one definition within the injunction.

[Curtis0620]

Protecting something is different from trying to hamstring any competition in the market place w/ law suits.

That is the DISH Twisted view.

[jacmyoung]

That is the DISH Twisted view.

That is not E*'s view, E*'s view is, they no longer infringing, therefore no longer violate TiVo's right, and in addition BTW, TiVo might not even have that right after all since the software claims are now rejected by the PTO.

[jacmyoung]

AGAIN:

If Microsoft modified the XML editor for Word 2010, it is no longer the "infringing custom XML editor."...

Then if E* modified the DVRs, they were no longer "Infringing Products".

You can't have it both ways. If you insist the DVRs are still "Infringing Products" whether E* modified them or not, then you must also insist the custom XML editor in 2010 Word is still "infringing custom XML editor" whether MSFT had modified it or not.

Only the court can declare later, after colorable difference and infringement analyses, whether they are no longer "infringing...", not according to E*, not according to MSFT, not according to you and not according me, based on your logic that is, so stick to it.

[Curtis0620]

That is not E*'s view, E*'s view is, they no longer infringing, therefore no longer violate TiVo's right, and in addition BTW, TiVo might not even have that right after all since the software claims are now rejected by the PTO.

I buy that. But not the TiVo has no right to protect itself view.

[Greg Bimson]

Then if E* modified the DVRs, they were no longer "Infringing Products".

Really? Where is that in the injunction?

Because from what I see, the "Infringing Products" that were installed as of the injunction date were ordered to have functionality disabled. That functionality was to be disabled for the life of the patent. Making the modification to disable DVR functionality from those devices would still keep those devices within the scope of the injunction until the patent expired.

Modifications did not change the legal definition of "Infringing Products", especially when the disable clause targeted only those devices found infringing.

You can't have it both ways. If you insist the DVRs are still "Infringing Products" whether E* modified them or not, then you must also insist the custom XML editor in 2010 Word is still "infringing custom XML editor" whether MSFT had modified it or not.

Both ways? Consistently KSM and StarBrite are ignored in order to make a point. Microsoft is making a new, modified version of Word called Word 2010, and you already have it found in contempt! And that is simply because it contains a custom XML editor, a modified version of the one found in Word 2003 and Word 2007. And yet there is still no citiation from the Microsoft injunction.

This is laughable.

[jacmyoung]

I buy that. But not the TiVo has no right to protect itself view.

Good we can agree on something.

[jacmyoung]

...Modifications did not change the legal definition of "Infringing Products", ...Microsoft is making a new, modified version of Word called Word 2010, ...

Then modification cannot change the definition of the "infringing custom XML editor" either, and since the injunction said "future Word products", and the appeals court confirmed the injunction meant "Word products with infringing custom XML editor" (regardless 2003, 2007 or 2010), and since when the appeals court made such statement, the 2010 Word with the custom XML editor already existed, so no, modification cannot change the legal definition of the "infringing custom XML editor" to something else, according to you.

[whatchel1]

That is the DISH Twisted view.

That is the view I had before I ever got the E* system I have not liked them since the death of replay and it selling out to Tivo. It's attitude has been from then we are the only one that has a right to offer a DVR.