Now let me get into a few Tivo investors comments a little, keep in mind they have taken things out of context, and only cited conversations which they found appeared to go Tivo's way, but if you read on you will agree it was in fact the opposite.
One of the things Tivo investors cited was when the DISH's lawyer told the judge the "colorable difference" finding would be a shame, meaning the DISH lawyer thought the judge should find DISH no longer infringing on Tivo's patent.
That was of course stupid for the DISH's lawyer to say that, and the judge laughed at that rightfully.
In a contempt proceeding, the judge is not allowed to determine if the design around is infringing on the Tivo patent or not, rather if the design around is more than colorably different compared to the old DISH design.
By questioning what the judge can or cannot do, it not only showed DISH lawyer's lack of judgment as far as what the standard is, but also disrespect for the judge.
To which later the judge tried to teach DISH lawyer a civics lesson, by asking him, did you think I could still find DISH in contempt? To which the DISH lawyer thought about it for some time and finally answered, yes you could still find DISH in contempt. But if so please stay the sanctions while we appealed. The judge said not likely if there was a contempt, but sure you could appeal.
The Tivo investors seized on that Q/A to believe it meant to say DISH will be in contempt, but it is not true.
What the judge was doing was to tell the DISH lawyer, you need to respect my power, in my court room, not to question my decision, whatever that may be in the future, rather calling any one decision "a shame."
Of course the judge can find DISH in contempt, if he decides that the design around is only colorable. The judge was also telling the DISH lawyer, if you wanted to challenge my decision do so in the future, during your appeal, but not in my court room.
The good thing was the DISH lawyer in the end gave the correct answer, he said yes your honor it was possible you could still find DISH in contempt, if the design around was only colorable.
That answer at least showed the lawyer finally understood what he could or could not tell the judge how the judge might make his decision. A good saving grace for him, even though it took him a minute to come up with that correct answer.
So in conclusion, the judge has shown his clear understanding of the rules and precedures, and what he must do and what he may not do, in a contempt proceeding. I am confident that he will rule DISH not in contempt because the DISH design around is substantial, and more than colorably different compared to the old design.
The only problem is giving DISH lawyer's misstep, I am not too sure if he himself still has the confidence, because he showed arrogance and over-confidence, to me it was actually a sign of lack of confidence.
Again my disclaimer, the above is based on the very limited court transcript, once the full version becomes avaiable, I will try to do another analysis, it is entirely possible some of my interpretations may not be accurate.
I was going to wait but since those TiVo investors and their market analysts have been busy again interpreting the judge's facial expressions, I thought to put my two cents in as well.