On what grounds to you feel this is moving against TiVo ?
I already said, on the ground that the TiVo investors did not like what they heard
Seriously, this is Judge Rader's words at the beginning of the hearing:
"Infringing is all we can enjoin, of course!"
He then grilled the E* attorney why E* did not bring the issue to the appeals court during the last appeal. Had E* tried to clarify the issue, "we could have with a stroke of our pen [ordered the injunction vacated and/or modified]..."
E*'s response of course was, why? Based on our interpretation, the injunction only enjoined the "Infringing Products", why would we have imagined anything else and needed to clarify it?
1) Is the Software Work-Around still on the Table? Folsom said no. Is that what E* is appealing ?
Judge Rader then grilled the TiVo attorney mostly on the design around issue, asking him how could TiVo say the PID filter analyzed the audio and video data when the data were scrambled before they hit the PID filter? The response was, but not all data were scrambled.
By such response, Judge Rader got the TiVo attorney to admit the PID filter could not analyze audio and video data if the data were scrambled. That admission alone refutes TiVo's contention the PID filter analyzes audio and video data. That IMHO should be enough to throw out TiVo's infringement theory.
2) Something related to the judgment/penalty. It's excessive and must be reevaluated ?
Not a single word about the sanctions. You would think if the appeals court had any inclination to uphold Judge Folsom's ruling, they would at least asked parties' positions on how much should be the right amount of the sanctions? Draw your own conclusion on that one.
3) Then there's the PTO patent reexamination. That just seems like a big wild card. Depends on the timing. My understanding it that even if the patent is invalidated it doesn't effect prior awards or rulings. Would this be why E* will wait as long as possible to pay the next 200M installment ?
Not a word of it. Is it even necessary?
Or E* will pay TiVo month-2-month while they wait for the Patent Decision.
There has never been any intention by the court to impose a compulsory licensing agreement.