TIVO vs E*

[Hall]

I thought the order only applied to the named devices of which the ViP922 is not one.

This has been repeated ad nauseam ... TiVo's attorneys aren't that stupid. Using the logic that if it isn't named, it doesn't count is foolish. Dish could simply re-name the offending receivers and be free and clear if that were the case !!

Nonetheless, many opinions seem to be that the ViP DVRs, which I believe all are Broadcom-based, are in fact okay as much of the "programming" is hardware-based. Did Broadcom copy TiVo code ? That's not known... Is Dish liable (directly) ? No.

 

[jacmyoung]

How did they make this connection?...

The report is correct that if all the new E* DVRs are found to be only colorably different than the 8 named DVRs, the injunction applies to them too. Too determine this, a new motion must be filed by TiVo, and another round of discovery and testimonies also will be needed to determine both the hardware and the software used in all the new E* DVRs.

Judge Folsom has ordered a new hearing later this month to discuss any additional sanctions if needed, and TiVo will almost certainly introduce all the new E* DVRs in that meeting. It will take a long while to sort this issue out, but the public perception will be decidedly against E* at that point.

That is why it is most important that E* gets the appeals court to stay all future proceedings at the district court level, pending appeal.

I was incorrect for saying that this time E* did not ask Judge Folsom for a stay of his own order in the event of an adverse decision to E*. E* did ask for a stay, but Judge Folsom denied it. In fact E* had to ask Judge Folsom for a stay first, only after a denial, so could E* appeal to the appeals court for a stay. On appeal, E* must explain under what justifications did Judge Folsom deny E*’s stay request.

Below are Judge Folsom’s reasons for the denial of the stay of the injunction:

…The harm caused to TiVo by EchoStar’s contempt is substantial. EchoStar has gained millions of customers since this Court’s injunction issued, customers that are now potentially unreachable by TiVo. See Dkt. No. 773 at 10. As this Court has noted in the past, "loss of market share and of customer base as a result of infringement cause severe injury," and "every day of Defendant’s infringement affects Plaintiff’s business." Id. at 10-11. Although EchoStar requests that this Court stay its injunction further, this Court declines to do so. EchoStar has escaped this Court’s injunction for over two years and further delay will be manifestly unjust to TiVo and cause TiVo substantial harm.

Now after the E*’s initial motion to stay, the appeals court granted E* the temporary stay, ordered TiVo to file its response by 6/10. TiVo will undoubtedly make every effort to convince the appeals court to lift the temporary stay. Below are the appeals court’s measures in determining whether a stay is appropriate or not:

In determining whether to issue a stay pending appeal, a court considers:

(1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) Whether the applicant would be irreparably injured absent a stay;

(3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) Where the public interest lies.

E* cannot argue on (2), (3) or (4) because for (2), they argued on it last time, it is unlikely the appeals court will seriously consider it this time. Item (3) is a given, the harm done to TiVo will be obvious if there is a stay. As for (4), even if E* may argue the design around effort should be encouraged for the sake of promoting innovation in the public interest, the "countervailing" public interest of preserving a strong patent system will likely cancel it out.

E* therefore must demonstrate that they are likely to succeed on appeal on the merits, IMHO not only likely but very likely, or put it differently, E* must demonstrate that Judge Folsom’s ruling very likely lacks merits. I think E* should be able to demonstrate that, but the pressure is tremendous on E* to settle.

This is by far the most nerve-racking situation for Charlie, all the past hair-splitting moments during his lawsuits and negotiations are nothing compared to this one. I can’t wait to see what may happen. The good thing is, it should not take too long to find out.

 

[rockymtnhigh]

This has been repeated ad nauseam ... TiVo's attorneys aren't that stupid. Using the logic that if it isn't named, it doesn't count is foolish. Dish could simply re-name the offending receivers and be free and clear if that were the case !!

Nonetheless, many opinions seem to be that the ViP DVRs, which I believe all are Broadcom-based, are in fact okay as much of the "programming" is hardware-based. Did Broadcom copy TiVo code ? That's not known... Is Dish liable (directly) ? No.

This is the argument that I was trying to remember. Thank you Hall.

 

[kenalpine]

What about programs stored on VIP622?

If the stay is lifted, it appears that programs stored on the HDD in the DVR will either be wiped out or at least no longer accessible. Am I correct? Is it also correct to assume that transferring them to an external drive would accomplish nothing since E* uses a unique format? I have some movies and a bunch of VOOM 'Eye Over' programs stored and would hate to loose them. The alternative of transferring them to the HDD of my Panasonic DMR-E85H is weak because it's not HD and transfer is via S-Video. Would E* just oull the plug with no notice? Would they reduce my bill by $5.00/month? Fat chance!

 

[rockymtnhigh]

DP-522, DP-625, DP-721, DP-921, and DP-942 use the Broadcom chip. They are among the named DVRs in the injunction.

So then is it the opposite that the vip series DO NOT.

 

[rockymtnhigh]

If that was a question, the answer is "no".

And what is your source of knowledge for the definitive answer to this? Provide a citation please.

 

[rockymtnhigh]

I happen to know. You can google it.

Well isn't that special, and typical. Asked a legitimate question, and get no answer. (And as the moderator of this thread, I have earned the right to roll my eyes).

Pathetic.

 

[Hall]

So then is it the opposite that the vip series DO NOT.

The ViP receivers DEFINITELY use a Broadcom chipset. I thought the older receivers did NOT use it. The ViPs do use a different (newer) generation of Broadcom's chipset though.

 

[Hall]

I suspect this thread, http://www.satelliteguys.us/dish-network-technical-discussions/56125-first-look-622-review.html, shows the chipset, but I see no images at all. Are they gone or did I get click-happy with Adblock one day ?

 

[rockymtnhigh]

The ViP receivers DEFINITELY use a Broadcom chipset. I thought the older receivers did NOT use it. The ViPs do use a different (newer) generation of Broadcom's chipset though.

So is it that different generation which is why up to this point the Vip series has been considered outside of the scope of the litigation?

 

[rockymtnhigh]

I suspect this thread, http://www.satelliteguys.us/dish-network-technical-discussions/56125-first-look-622-review.html, shows the chipset, but I see no images at all. Are they gone or did I get click-happy with Adblock one day ?

Scott must have moved the physical location of the image files, which caused them to disappear. I'll check with the big guy about that.

 

[rockymtnhigh]

The ViP series didn't exist at the time of the trial. That is why the ViP models aren't specifically named in the injunction. As others have said, this has beern repeated ad nauseum. They are ostensibly included by the "not more than colorably different" clause in the injunction. It will take another contempt hearing to settle it. Judge Folsom is a Broadcom expert by now. It shouldn't take long.

And how are you so certain that they are not "more than colorably different?" Seems to me that you are making a big assumption.

 

[rockymtnhigh]

If I gave the impression that I am certain I apologize. I usually charge for that information.

Whatever. Time to move on.

No point in trying to get information in what is supposed to be a discussion thread from someone not interested in actually engaging in the discussion.

 

[rockymtnhigh]

Ok, for our faithful participants interested in meaningful discussion.... how do we determine if the Vip series is more than "colorably different" from the older receivers? Hardware? Software? Specifics?

 

[vampz26]

Ok, for our faithful participants interested in meaningful discussion.... how do we determine if the Vip series is more than "colorably different" from the older receivers? Hardware? Software? Specifics?

I've posted similar commentary earlier...and I'm only posting this for possible speculation for those who enjoy the 'technical' aspects of the trial...

1) The original Tivo specs were built around the parsing, buffering, and synchronizing the composite elements of an mpeg2 datastream.

2) ViP, or ANY mpeg4 DVRs did not exist during the time of the initial filings, and thus were not included. Thanks to jacmyoung for pointing that out.

3) mpeg2 and mpeg4 implement different compression algorithms, and sync their audio and video layers differently. They are basically two different audio/video technologies with one arguably superior to the other.

...so with that in mind, I put the following questions on the table for discussion:

1) Are the parsing, buffering, and synchronization pieces ViP series for mpeg4 data implemented differently enough from the previous mpeg2 DVRs to provide colorable difference?

2) Is the ability of the ViP alone to handle BOTH mpeg2 and mpeg4 datastreams enough to qualify as a colorable difference, since the original design was based on just one datastream.

The burden of proof here is obviously on E* at this point. Taking the discussion strictly in the context of my previous two points, given that Tivo's patent (whether I consider it bogus or not) is considered a broad patent, that means that the ViP series not only needs to prove a colorable difference between the current mpeg2 Tivo DVR implementation named in the trial, but prove that the ViP mpeg4 implementation is substantially different enough to have been considered "not derived from Tivo's original patented technology". Which can be the more difficult argument...

And lastly, even if the mpeg4 DVR functionality is considered not to infringe in and of itself, can the mpeg2 DVR functionality within the ViP be considered as possibly infringing?

...all this and more as we wait until our next episode. Same Bat-time, Same Bat-channel...here at Satguys...

 

[jacmyoung]

Ok, for our faithful participants interested in meaningful discussion.... how do we determine if the Vip series is more than "colorably different" from the older receivers? Hardware? Software? Specifics?

Both.

If you read the judge's ruling, he was in agreement with TiVo that the change of 5,000 lines of software code is not much, compared to millions of total codes, so basically 0.1% of the code change is not more than colorably different. That is total BS because if a single line of code can remove a key element of the claim it should be enough. They did not care about what function each line of code is actually performing, rather the literal amount of codes that were different.

But as long as we are using such logic used by the judge and TiVo, it was easy to find the redesigned DVRs only colorably different from the 8 named DVRs because the hardware did not change a bit.

Now the newer DVRs are different both in software and hardware. The difference in hardware alone is substantial, different boards, different chips, memories, hard disks, wirings and so on. There is no way you can easily point to the two hardware boxes and say hey they are only colorably different, as long as your method of comparison is literally the difference in each component, not what the function it performs--which was exactly what TiVo and Judge Folsom was doing with respect to the software comparison.

 

[Hall]

Whether MPEG2 or MPEG4 is the video stream in question should have little to no relevance to the DVR's functionality, i.e. does it do what TiVo has patented ?

 

[vampz26]

Whether MPEG2 or MPEG4 is the video stream in question should have little to no relevance to the DVR's functionality, i.e. does it do what TiVo has patented ?

The devil lies in the details...I don't know how much you know about syncing the audio and video layers in a digital datastream, but they do differ between mpeg2 and mpeg4.

So thats the question, does it do what Tivo patented?

There is always more than one way to achieve a given result...mpeg2 and mpeg4 are very different ways of achieving a similiar result. The question is whether or not the manipulation of those different ways within a DVR is ALSO a different way of achieving a similar result.

that is the question.

 

[rockymtnhigh]

Thank you all. This is interesting.

Hall - I am wondering if the hardware and software mechanisms are different to achieve the same end (i.e., a functioning dvr), if the PROCESS is the same? I don't have the answer to that.

 

[jacmyoung]

Thank you all. This is interesting.

Hall - I am wondering if the hardware and software mechanisms are different to achieve the same end (i.e., a functioning dvr), if the PROCESS is the same? I don't have the answer to that.

If hall is correct that the new Broadcom designs have a lot of the DVR functions built in, then the E* software code used on those new DVRs will be very different than the code used on the old DVRs.

And if the difference in the number of the lines of the code is the way to determine colorable difference, one can argue the new DVRs should be more than colorably different on the software, that is in addition to the hardware differences.

But you are correct, the determination should be based on whether the software process and hardware functions are the same or not. Unfortunately the judge can have it both ways, he already said he decided to use his "wide lattitude/discretion" to find E* in contempt.

But the appeals court's job is the opposite, they said themselves when the district courts use their wide lattitude, it was the appeals court's job to make sure such lattitude was narrowed down on appeal.

My biggest issue with the judge's opinion is he completely side-stepped E*'s assertion that the PID filter does not analyze the audio and video data, only the channel ID for the purpose of channel tuning (just as TiVo said during the trial), and also got TiVo to admit the PID filter did not temporarily store any data for later extraction by the source object. The above proved they at least no longer meet the two other elements of the software claims. Yet the judge totally ignored them, talking about the use of his "wide lattitude."