TIVO vs E*

[Greg Bimson]

The injunction here is as "iron-clad" as those in the Starbrite, the Footprint2.0, the Bestow Foods, the Price Fisher, KSM, and many many others. In all of those cases, the infringers were not in contempt aftere their design arounds were found more than colorable, no exception. This injunction is not special, only TiVo wanted to make it special, different than all the other ones. Judging by that I'd say they will fail.

Starbrite -
Company ceased making the infringing formula in a boat polish; the Court ruled that accusing sales of product with the same name but with a modified formula is not in contempt.

Footprint 2.0 - The injunction was against a process implemented by software. The injunction only prohibited the service, "as was configured and described at trial". Changing the software means the service was no longer "as was configured and described at trial".

Barstow Foods - injunction issued against egg processor for infringement of patent which pasteurizes eggs. Infringer put several motions before the court regarding a workaround while patentee accused the infringer of contempt due to a merely colorably different process. Contempt denied, as the Court felt the infringer a) informed the Court of the workaround, and b) the workaround did not infringe with the data presented by the infringer.

Fisher Price - accused Safety 1st of continuing sales of infringing product against an injunction, and for refusal to follow the recall order in the injunction completely. Safety 1st was found in contempt except for those products they modified then sold.

KSM - A consent decree was signed by infringer Jones, stopping sales of a wall anchor (called Therma-Lock) and any others of the same type that infringed on KSM's patent. When Jones started selling more wall anchors (the Ultra-Lok I and II) which were the same type, KSM filed contempt charges for violation of an injunction. The injunction actually cited the complaint (more on the next quote), and the trial Court simply enforced the injunction as written, since Jones was selling anchors of the same type as the original Therma-Lock anchors. The Court of Appeals, however, overturned the finding of contempt by stating that "infringement must be found" before contempt can be granted.

Of all the above cases, only the Fisher Price contempt charge contains a component other than a listed product regarding continuing infringement. The recall order was not followed, and Safety 1st was found in contempt on that point. In this case the disable order was not followed.

What TiVo is facing is, if TiVo is right that even if the act of using the DVRs no longer infringe on the patent, the injunction may still prohibit such act, then TiVo is asking the court to violate its own Rule 65d, the law, by trying to prohibit such legal act, such non-infringing act, even though the Court said very clearly no injunction can do that.

An injunction that violates Rule 65(d), which basically means the injunction is a self-contained document and in a patent injunction enjoins ongoing infringement, is valid unless it is challenged. Even Walker v. Birmingham should make everyone understand that one does not violate a court, even if the order is "invalid". And now that the injunction is in full force and effect, it is valid and cannot be challenged.

Besides, the injunction orders receivers in customers' hands that have been found infringing to be disabled. Just because there was some kind of modification made does not change the finding that those receivers were infringing.

 

[vampz26]

Pointing faults in my logic is arguing, and you did not try to point out the faults in my arguments, rather trying to point out who I am and go from there, that is the definition of arguing against man.

LMAO! Dude...

How could I be arguing if I don't CARE what you are arguing about? I have no interest in anything you or Greg are arguing about! I was just pointing out obvious faults in your logic to make whatever discussion you were having more interesting to the neutral reader...namely me! But as for arguing with you? I don't think so...I stated a fact, a logical fault, and you can't dispute it without rambling jibberish...case closed. No argument intended be me, nor even arguable by you. Thats what I meant when I said you were taking it personal in the begining...

Other than trying to define me, not my arguments, you also appear to say whatever our arguments are they are pointless, because in the end whatever the judge will say will just be as pointless as far as you are concerned. None amounts to much any way, you only care what you think, because what you think is all that matters, if so why bother? Maybe this thread is not for you, maybe you can start your own thread called "why your opinions do not matter, nor the judge's opinion"..

I think THIS is the definition of arguing against the man...

I'll tell you what, YOU prove that a judges word is perfect and never wrong, and I'll admit that I am. How's that...can you prove a judge's word is always perfect and without fault? Any judgement made has the potential to be incorrect, and therefore proves nothing. A judgement is intended to settle a dispute, not prove one side right or wrong. Its rarely that cut and dry anyway...

Just look at what Greg is doing arguing with me, he did not commit such fallacy by aruging against who I am, we both are pointing out the merits (or lack of them) of our arguments themselves, not his bias or mine. We obviously cared what each other's opinions even though we may disagree, and also what the judge's opinion will be.

Newflash....thats because Greg is actually arguing you. ME? No...just pointing out a fault in your logic, acknowledging, and moving on...like I said, YOU made it personal...here and in the beginning. (all things considered, you should have THANKED me for that advice instead of attacking me over it.)

Now for the last time...what provider are you currently with? Is there a reason you won't divulge that? Don't worry, I won't accuse you of trolling E* forums looking for a fight again...or trying to 'outdo' people as I know you love to do...I just think everyone should know where your loyalties lie so they can best understand your position. And if you don't wish to divulge that information, I'd like to at least know the reason....ALSO to better understand your position.

 

[jacmyoung]

Don't put words in my mouth, I never said a judge is never wrong, in fact judges do make mistakes from time to time, which is why there is the appeal process, else why bother?

What I said was, and I think Greg agrees, the judge's decision will carry much more weight than ours, even if sometimes they are wrong, and even if our legal system may do injustice from time to time.

But the judges' decisions still carry much more weight than ours. I will go one step further, sometimes even if later it is proven the judge's order was wrong, a defendent can still be subject to punishment resulting from not following such judge's wrong order. That just tells us why a judge's decision carries much more weight than yours and mine.

You on the other hand laughed at the above notion, citing injustice and inexperience or bias among some judges as your justification to dismiss the importance of a judge's ruling.

You can have your opinion of course, but not everyone has to agree with you, just like not everyone wants to know who my provider is, not everyone likes to bother a mod every time he reads a post he does not agree, even though you said you do.

 

[vampz26]

Don't put words in my mouth, I never said a judge is never wrong, in fact judges do make mistakes from time to time, which is why there is the appeal process, else why bother?

What I said was, and I think Greg agrees, the judge's decision will carry much more weight than ours, even if sometimes they are wrong, and even if our legal system may do injustice from time to time.

But the judges' decisions still carry much more weight than ours. I will go one step further, sometimes even if later it is proven the judge's order was wrong, a defendent can still be subject to punishment resulting from not following such judge's wrong order. That just tells us why a judge's decision carries much more weight than yours and mine.

Looks like we've come full circle here. I've already said that the decision of a judge is a respectible baseline to establish a position or settle a disagreement, but to say a judges decision 'proves' anything is wrong. But yes, if you choose to base the outcome of your discussion on a judges decision, than thats between you and Greg. It just means you accept the judges authority in deciding your argument along with the whole Tivo/E* mess, but in no way means anything was proven...it was merely settled and you are accepting the settlement.

You on the other hand laughed at the above notion, citing injustice and inexperience or bias among some judges as your justification to dismiss the importance of a judge's ruling.

No...I used it as an example, not a justification. An accurate example and a very realistic example. Does it dismiss the importance of a judges ruling? Sadly no...though in many cases it should... But overall, that accurate claim of mine serves as an example as to why a judges decision in general proves nothing. Anyone trying to use a judges decision as 'proof' is just plain wrong in doing so. The only notion I was laughing at was you not getting it. Its not that difficult to understand. Presidents can be wrong, popes can be wrong, parents can be wrong, who is to hold some local appellate judge to a higher standard? Who is putting word in who's mouth here...

You can have your opinion of course, but not everyone has to agree with you, just like not everyone wants to know who my provider is, not everyone likes to bother a mod every time he reads a post he does not agree, even though you said you do.

I just think you should confess what you are hiding, unless you think it would damage your credibility in an E* forum somehow...

 

[jacmyoung]

Looks like we've come full circle here. I've already said that the decision of a judge is a respectible baseline to establish a position or settle a disagreement, but to say a judges decision 'proves' anything is wrong. But yes, if you choose to base the outcome of your discussion on a judges decision, than thats between you and Greg. It just means you accept the judges authority in deciding your argument along with the whole Tivo/E* mess, but in no way means anything was proven...it was merely settled and you are accepting the settlement. ...

We are not coming in full circle, you have changed your position, initially you said judges' decisions meant no more than yours and mine or anyone else's, I disagreed, now you agreed the decision of a judge is a respectable baseline to establish a position or settle a disagreement, that is to say the judge's decision is more valuable and carries more weight than yours and mine and anyone else who rely on the judges to settle differences.

It is in no way in saying the judge's decision cannot be wrong, I never argued that a judge's decision was always right.

Now as far as whether a judge's decision can prove anything, of course it can, it poves who is on the right side of the law, especially if it stands up to the appeals. Sometimes the law itself may be wrong, but the court's decision, if upheld, is the law, even if it is wrong. And who will be on the right side of that law will be proven. For example, E* was found guilty of infringement on the TiVo's patent, the decision was made by the jury, but the order of the injunction was handed down by the judge.

The judge's injunction was upheld by the higher courts, it is absolutely reseanable to say E* has been proven wrong according to the law, Charlie said so himself, even though he disagreed with the decision, he still said he was proven wrong.

Greg and I are saying the same, the judge's decision (especially if it may be upheld on appeal), will be the final words, depending on the detail of the ruling, we can each claim victory or defeat, or partial victory and defeat, or even a draw, the point is, people accept the decision of the court to determine right and wrong, or if you want to be picky, I will say to determine who is on the right side of the law, despite the fact the court (i.e. the law) can be wrong too. If the law is wrong, there is this authority that can change the law too to make it right, but I will not go there, it will be too OT.

If you insist the only time someone can decide who is right and wrong is if that decision maker never to make any mistake, there will never be right and wrong decided, because the only thing we are sure of is no one is perfect.

As for my credibility, I feel perfectly comfortable whatever people think if I have any or not, based on what my arguements have been. If you think my refusal to tell you who my provider is renders all my arguments without merit, that is fine with me, just remember, not everyone else must agree with you. I am not hiding anything, I just do not care to go OT. The information of my provider has nothing to do with this thread nor anything to do with what Greg and I had been arguing.

 

[vampz26]

Sigh...

Jacmyoung, that's an aweful lot of words used in an attempt to dispute an otherwise simple concept, which alone pretty much illustrates the weakness of your claim.

Once again, the concept is simple:
1. Law is NOT an exact science.
2. Lawyers and judges merely INTERPRET the law.
3. They form opinions based on the interpretattion.
4. They base decisions on their opinions.
5. The logic here simply does not yield anything that in any way, shape, or form can be considered concrete proof.

...And your usual game of weaselwording and convoluting the issue with nonsense does not change that.

 

[CuriousMark]

You two seem to be talking past one another. There are two definitions of proof and you aren't both using the same one at the same time. One of those definitions is legal proof, as in proved in a court of law. The point proved thusly may still be wrong, but for the purposes of the court it is henceforth considered to be a proved fact. So you are both right, but not about the same things and are each assuming the other is using your definition of proof when talking back and forth.

 

[Ronnie-]

You two seem to be talking past one another. There are two definitions of proof and you aren't both using the same one at the same time. One of those definitions is legal proof, as in proved in a court of law. The point proved thusly may still be wrong, but for the purposes of the court it is henceforth considered to be a proved fact. So you are both right, but not about the same things and are each assuming the other is using your definition of proof when talking back and forth.

Well said

 

[vampz26]

Well said indeed...

That which may be determined as proven in court for the purpose of settling an issue, may be either speculative, subjective, or downright incorrect in the larger scheme of things.

And this isn't a courtroom, so whatever constitutes as legal proof for the lack of anything more substantial, obviously doesn't count for much here.

Legal proof and actual proof ARE two different things! Just ask anyone who has ever fought a parking ticket.

 

[Curtis0620]

Well said indeed...

That which may be determined as proven in court for the purpose of settling an issue, may be either speculative, subjective, or downright incorrect in the larger scheme of things.

And this isn't a courtroom, so whatever constitutes as legal proof for the lack of anything more substantial, obviously doesn't count for much here.

Legal proof and actual proof ARE two different things! Just ask anyone who has ever fought a parking ticket.

Lost? The War-Zone is a few forums down from here.

 

[ScoBuck]

Sigh...


...And your usual game of weaselwording and convoluting the issue with nonsense does not change that.

Is this your usual game of flaming and name-calling? Knock it off please.

 

[jacmyoung]

Well said

And that was precisely what I meant, and I think what Greg meant too--legal proof. Of course the Court has the final say in a legal dispute. Which is why I said if Vampz26 wanted to express his view that judges are no good, he should start a new thread.

In this thread, we are discussing a legal case, in a legal dispute in front of the judges, parties naturally agreed to let the judges (in the District Court, the Circuit Court and all the way to the the Supreme Court) make the final call who is correct in their legal dispute.

Therefore I do not see why someone was surprised and felt compelled to argue against the notion that both Greg and I are willing to let the judge(s) determine who is right who is wrong. And additionally, I still do not see how my providers information has anything to do with this case.

 

[vampz26]

Is this your usual game of flaming and name-calling? Knock it off please.

My word have been very clear and concise Sco. With all do respect your reprimand is misguided.

And while you are in the E* forums. Do something about the D* trolls, will ya? Thanks. Your ok.

 

[vampz26]

Lost? The War-Zone is a few forums down from here.

Of course not.

Its just that I am an E* sub in an E* forum. I'm not lost. Are you?

 

[Rey]

Of course not.

Its just that I am an E* sub in an E* forum. I'm not lost.

vampz am i actually looking at you argue with your self?

 

[vampz26]

no...Just attempting to point something out to Sco. lol

just messed up the reply because I was using a blackberry.

 

[Rey]

no...Just attempting to point something out to Sco. lol

just messed up the reply because I was using a blackberry.

for a moment i thought you lost your mind. lol!!!

alrighty then........

 

[Thomas22]

Think about it. All DISH/SATS has to do is change one byte of code so they can ignore a court order.

Actually, a company can ignore a court order without changing a single line of code. Situations like that are what contempt of court hearings are for. If there is no change or the change is merely colorable then contempt can be found. Otherwise, contempt can't be found.

An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be too insubstantial to avoid contempt. KSM

 

[Ronnie-]

vampz am i actually looking at you argue with your self?

Lord I was wondering that myself

 

[Greg Bimson]

Actually, a company can ignore a court order without changing a single line of code. Situations like that are what contempt of court hearings are for. If there is no change or the change is merely colorable then contempt can be found. Otherwise, contempt can't be found.

But technically, that only applies to "new products" and new constructs. For products never adjudged before the court, both infringement and colorable difference must be found. KSM tells a wonderful story; it is a shame that a few sentences are being used:

Paragraph 7:
Having enjoined the infringer, a patent owner who is confronted with another possible infringement by that party in the form of a modified device will very likely seek to invoke the power of the court to punish the adjudged infringer for contempt in violating the court's injunctive order. [...]

Paragraph 8:
A civil contempt proceeding for violation of an injunction issued after patent litigation, while primarily for the benefit of the patent owner, nevertheless, involves also the concept of an affront to the court for failure to obey its order. As explained in American Foundry & Manufacturing Co. v. Josam Manufacturing Co., 79 F.2d 116, 118, 26 USPQ 338, 339 (8th Cir.1935): A decision adjudging infringement necessarily finds the particular accused device to be within the valid boundary of the patent. The decree usually carries a prohibition against further infringement--not as to any and every possible infringement, but as to the particular device found to be infringement and as to all other devices which are merely "colorable" changes of the infringing one or of the patent. [...]

Paragraph 9:
In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation, the courts have been uniform in exercising restraint in affording the patent owner the benefit of contempt proceedings.

Paragraph 10:
In MAC Corp. of America v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 226 USPQ 515 (Fed.Cir.1985), this court affirmed the denial of proceedings in contempt where the district court found a "fair ground of doubt" that the injunction against infringement had been violated because of differences between the adjudged and accused devices. In so holding, the court followed the Supreme Court's directive in California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 622, 28 L.Ed. 1106 (1885):

Paragraph 11:
Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct.

Paragraph 12:
Thus, not all subsequent infringements by an enjoined party are deemed in contempt of the court, even though an injunction may be written broadly enjoining, as in California Paving, further infringements.

Paragraph 13:
While the courts have been uniform in acknowledging that contempt does not embrace all infringements by modified devices, there has not been uniformity in the actual standards for determining (1) when contempt proceedings will be entertained, and (2) when contempt will be found. These are separate questions and the standard for determining the answer to each must be addressed in this appeal.

The lynch-pin of DISH/SATS case is KSM says a modification must be addressed. However, KSM is about devices that have never been adjudged before the court.

The four (now three) million devices subject to the disable order have been before the court. The contempt matter in TiVo is not about continuing infringement as KSM was; the contempt matter in TiVo is about ignoring the disable order, which does not have any language regarding continuing infringement.

This is NOT about the "new constructs". This is about the devices which were already found as infringements. And they certainly have NOT been disabled.

The TiVo contempt motion is only about the products that have already been adjudicated as infringements. If DISH/SATS were so keen to change the receivers, they should have been just as keen to have Judge Folsom rule that the workaround could put the at-risk receivers out of scope of the injunction.