I think he is saying that E* has already been found to infringe (and nothing can change that) but the contempt charge for continuing to infringe will go away if TIVO amends the patent to get it recertified. Verizon and ATT are only being accused of infringement and the amended patent would be used to find if they are infringing.
DISH Network and Echostar Statement Regarding PTO Ruling
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Can't infringe
How can one infringe on something that no longer exist? If patent is no longer valid then explain how one can infringe it?
How can one infringe on something that no longer exist? If patent is no longer valid then explain how one can infringe it?
The original infringement case is over. It was appealed by E* all the way to the Supreme Court. E* was found to infringe and paid the damage amount to TIVO. It is over and cannot be changed. What is in the hands of the appeals court is the contempt ruling. That can be changed or overturned but not the original infringement case.
From what I understand, once the SC refused to hear E*'s appeal the case was final and over.
I suspect that Voyager6 may have interpreted the situation backwards. If the case law on which a decision was based is found invalid, it would seem that the decision might be subject to appeal.
The contempt case has nothing to do with the patent. It is all about DISH Network's failure to follow the judges instructions.
The contempt case has nothing to do with the patent. It is all about DISH Network's failure to follow the judges instructions.
E* failed to follow Folsom's injunction by not disabling the DVR's. However, E* claimed that by modifying the software the DVR's no longer infringed the '389 patent and therefore did not have to disable the DVR's. The full appeals court is asking the following questions. Should E* have gotten a full trial on the modified software instead of the summary contempt hearing by Folsom? Was there the ability to make the DVR's non-infringing within the scope of the injunction? Was the burden of proof on TIVO or E* in the contempt hearing? En Banc decision The questions the court wants answered start on page 2.
I used the wrong term “reissue of patent” rather should have said “certification of reexamination.” A reissue of a patent will move the effective date of the patent, but not a certification of the reexamination.
If the certification of the reexamination is the result of some amendment of the claims which makes the new claims not “substantially identical” to the old ones, the effect is the same with respect to the “not liable for the past infringement acts.”
TiVo has two months to respond to the PTO Final Action, they might get one extension for another month, however they will not be allowed to go beyond 6 months. If TiVo does what the PTO implied it should do, i.e. to amend the software claims by adding those new terms, and then if the PTO certifies the reexamination, E* will no longer be liable for any supposed infringement acts prior to the date of the certification. The date of certification will likely come before the en banc decision is made, should TiVo choose to follow the PTO’s request, rather than appealing the PTO Final Action to the Board.
The contempt issue can stand on its own, but without infringement liabilities, it will be moot even if the contempt is upheld, because Judge Folsom had tied his contempt sanctions to the infringement damages, if the infringement damages can no longer stand, so go the sanctions. Had he determined the sanctions amount as a separate item it might be a little different.
We all know the story. I remain unconvinced that the contempt proceedings has anything whatsoever to do with the status of the patent claims.
Judge Folsom told them to do something very specific (turn off the DVR feature) and they argued an alternative after the fact. How much more textbook contempt can it be?
I liken what happened to somebody's parents telling them the were grounded but deciding that there wasn't anything good to eat so they were justified in going to the local stop-and-rob to get something to munch on.
You know who's been conspicuously absent here? That's right. Our good friends 'Thomas' and 'Curtis'.
Why were they grounded? Since the reason for the grounding was found to be fasle. The grounding must be recinded. Therefore it was perfectly fine to go to the store. It's really very simple, people. It is as if it never happened in the first place. Why is that so hard to understand?
Companies do patent workarounds all the time. What gives the judge the right to deny E* to do the same? I think that's one reason why the COA took up the case en banc. Let's say I'm putting in a road to my house and I'm enjoined because I inadvertently put part of the road on my neighbor's property. Does that mean I cannot correct the error and rebuild the road on my property or am I permanently doomed to not having a road to my house?
The full appeals court is looking into the issue of whether the injunction had any wiggle room.
The key question is the 4th one (d), if one reads it carefully, it appears a foregone conclusion that the en banc panel had already determined that the injunction was ambiguous, the only question left to answer is, what should the court do about it?
The law is clear without any doubt on this one, an ambiguous injunction cannot be enforced.
The natural question is, how could the injunction be ambiguous given Judge Folsom's own interpretation of his own injunction? Such question is based on a misinterpretation of itself. The injunction was not Judge Folsom's injunction, it was TiVo's injunction. TiVo proposed it, Judge Folsom simply adopted it.
At the time TiVo proposed and the judge adpoted the injunction, TiVo provided its own instructions as how E* could come into compliance with the injunction, which E* took to heart and followed to the T.
Now TiVo says, we meant it differently. This irony was discovered by one and only one person, Judge Rader, during the last oral argument between him and Mr. Waxman. Even E*'s lawyer did not catch it. Mr. Waxman (TiVo's attorney) had no answer for Judge Rader at that time.
If one spends time to listen to the audio of the last oral argument, and read Judge Rader's opinion, it will be very clear what I am talking about.
Are you trying to turn this into a flame war? I'm sure they will chime in if they have a comment.
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Just to bring you people back from the Moon:
On the Patent and Trade Office decision favoring DISH: It's a slight positive, says Eagan, given that it will likely improve DISH's negotiating leverage but it isn't likely to have much impact on the DISH/EchoStar vs TiVo court case.
On the Patent and Trade Office decision favoring DISH: It's a slight positive, says Eagan, given that it will likely improve DISH's negotiating leverage but it isn't likely to have much impact on the DISH/EchoStar vs TiVo court case.
It took a while to track down but he is referring to Thomas Eagan a Wall Street analyst with Collins Stewart. Link
Not in the least. I was simply anxious to see what mental gymnastics would be performed to spin this in tivo's favor.
