TIVO vs E*
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I agree, it should be the greatest opening to sound the alarm to the appeals court, and it may just be enough to convince the appeals court to stay the order, though the hope to ultimately win on appeal must still be to demonstrate that the new software is more than colorably different therefore the new design-around may not infringe.
Or even if the new software is only colorably different, E* must demonstrate that TiVo still did not prove by clear and convincing evidence that the design-around still infringes.
The problem with the appeals court is, unlike at the district court level, we usually do not get to see all the filings, and must wait for the news report or wait for the appeals court to make its final decision and then read that decision.
PM me the citation for the current case and I'll check Westlaw and Lexis to see if anything shows up; I have never looked for COA stuff (most of what I deal with is Supreme Court decisions), but I can check.
PM me the citation for the current case and I'll check Westlaw and Lexis to see if anything shows up; I have never looked for COA stuff (most of what I deal with is Supreme Court decisions), but I can check.
PM sent but I seem to recall the E* motion was under seal.
Here is an interesting link:
http://www.cafc.uscourts.gov/opinions/05-1020.pdf
and the quote:
The dispute here is how "the person of ordinary skill in the art" interprets the term "parses audio and video data from the broadcast data" in the software claim step one.
E* contents that parsing audio and video data means analyzing start codes in the broadcast data. They say so because it was explained by TiVo during the jury trial how the entire patent was about--analyzing the start codes and build an index out of them. E* also relied on TiVo's own patent specifications to explain why parsing audio video data meant analyzing start codes.
In fact I have said many times when the appeals court overturned the hardware claims verdict last time, the court did precisely that, not only to look at the element of the hardware claims, but also the patent specifications in the context of the entire patent.
Now TiVo says but you can only read what the element of the claims in the software claims itself, if it does not mention the words "start codes" then start codes are irrelevant, if it does not mention the word "indexing" then indexing is irrelevant.
I said back then TiVo used the word "indexing" too during the last appeal, even though the hardware claims did not mention the word "indexing" either, and the appeals court accepted the "indexing" as relevant, because indexing was mentioned in the patent specifications, and should be allowed in the context of the "entire patent."
The above further demonstrates how the appeals court interprets the claim terms. One cannot isolate an element without the regard to the "entire patent" and the "patent specifications."
http://www.cafc.uscourts.gov/opinions/05-1020.pdf
and the quote:
The dispute here is how "the person of ordinary skill in the art" interprets the term "parses audio and video data from the broadcast data" in the software claim step one.
E* contents that parsing audio and video data means analyzing start codes in the broadcast data. They say so because it was explained by TiVo during the jury trial how the entire patent was about--analyzing the start codes and build an index out of them. E* also relied on TiVo's own patent specifications to explain why parsing audio video data meant analyzing start codes.
In fact I have said many times when the appeals court overturned the hardware claims verdict last time, the court did precisely that, not only to look at the element of the hardware claims, but also the patent specifications in the context of the entire patent.
Now TiVo says but you can only read what the element of the claims in the software claims itself, if it does not mention the words "start codes" then start codes are irrelevant, if it does not mention the word "indexing" then indexing is irrelevant.
I said back then TiVo used the word "indexing" too during the last appeal, even though the hardware claims did not mention the word "indexing" either, and the appeals court accepted the "indexing" as relevant, because indexing was mentioned in the patent specifications, and should be allowed in the context of the "entire patent."
The above further demonstrates how the appeals court interprets the claim terms. One cannot isolate an element without the regard to the "entire patent" and the "patent specifications."
Oh, I'm sure some Tivo 'supporter' will stick their nose up on that as they do with any other perfectly logical point, only because it doesn't magnify the greatness of Tivo...
I mean, if a proven advancement in technology can't hold a claim open to a possible dispute, what good is that going to do. (Except expose the ignorance of the courts again, but possibly in E*'s favor)
Sigh...I guess Tivo is more of a dogma than point of discussion. That could explain a lot.
I mean, if a proven advancement in technology can't hold a claim open to a possible dispute, what good is that going to do. (Except expose the ignorance of the courts again, but possibly in E*'s favor)
Sigh...I guess Tivo is more of a dogma than point of discussion. That could explain a lot.
If one reads the above appeals court's decision carefully, when interpreting the meaning of a specific elemental term in the claims, not only one must interpret it in the context of the "entire patent" and the "patent specifications," but also in the context of the "prosecution history." In fact I felt the appeals court was insane trying to dig out even the phone conversations between the examiner and the patent owner as part of the "prosecution history" for review.
E* did just what the appeals court said, E* reasoned not only based on the specific terms, but based on TiVo's patent specifications, in the context of the entire patent, and also pointed out during the last trial (prosecution history), TiVo made a point of why analyzing the start codes, then building an index table out of such start codes, were the "core" of the invention.
What does the word "core" mean? It means without which the invention cannot exist.
E* did just what the appeals court said, E* reasoned not only based on the specific terms, but based on TiVo's patent specifications, in the context of the entire patent, and also pointed out during the last trial (prosecution history), TiVo made a point of why analyzing the start codes, then building an index table out of such start codes, were the "core" of the invention.
What does the word "core" mean? It means without which the invention cannot exist.
This is not what the judge said.
Folsom said Echostar would still be held in contempt if the new software was non-infringing. That may seem like a minor distinction, but an important one as far as the law is concerned.
This part of the ruling only makes sense when you understand that Folsom considers the the shutoff to be a part of the original remedy. There were two parts to the remedy: (a) damages and (b) shutoff. Folsom decided that a product recall was necessary to offset the damage caused to TiVo, but Dish Network said its DVR functionality could be shutoff simply by changing a setting on their end, thereby converting those DVRs into STBs. As a concession to Dish Network, Folsom decided to allow the DVR shutoff rather than requiring a full product recall. Folsom was led by Dish Network's lawyers to believe that a recall and shutoff would accomplish the same purpose.
Had Folsom just ordered a product recall to start with, we would not be having this discussion. For Folsom, it does not matter whether Dish Network's older DVRs no longer infringe, because those DVRs were not legally sold in the first place, and are not supposed to exist in the field, as per the original remedy for damages made to TiVo. Those boxes are supposed to be STBs only.
DVRs shipped with non-infringing software would pose a legal dilemma for Folsom, but that potential issue was rendered mute when the new software was found infringing.
If the only issue was whether or not the DVR functionality was shut off, why did the judge drag the thing out for almost a year and hold so many hearings? It was well known to him way back that they weren't shut off.
Or maybe just let a band of Tivo guerilla fighters storm into peoples homes, and hold our familys at knife point while they ransack our belongings and gleefully take our DVRs and spit on our carpet...
That would remedy the situation too...
It's simple, really.david_jr said:
TiVo files a motion, simply to place DISH/SATS in contempt for failure to disable devices as the disable order states.
DISH/SATS files their opposition, claiming they have new software and their modified devices don't infringe, so they cannot possibly be subject to the disable order. To get the motion defeated, DISH/SATS is placing all of its hopes on an evaluation of the modified receivers.
TiVo files the response, claiming DISH/SATS can also be found in contempt because the modified receivers are only colorably different and continue to infringe, and therefore, violate the order against infringements.
TiVo had also filed a request for additional damages during the stay period.
Notice how Judge Folsom's ruling addressed all of the above.
It doesn't matter that it dragged on for an additional year; DISH/SATS will have to pay BIG dollars because they've been in contempt for 13 months, as the Court of Appeals should uphold the decision regarding contempt of the disablement clause.
No dispute here.jacmyoung said:
There can be no challenge to the claim interpretation from the Markman hearings.
Five of five experts testified during trial that PID filtering met the analysis element in the first step of the claim. Only one changed the story, recanting what he said on the stand during trial, as it may be because he was being paid by the infringer.
The only entity changing the story about PID filtering meeting the parse step is the infringer. Two of DISH/SATS experts would NOT recant that testimony.
This is not what the judge said, the judge said even if the design around is non-infringing.
But the point is not what that specific term is, rather that if the design around is non-infringing, can the DVRs still be defined as "Infringing Products?" If yes, the disabling provision still applies, if not, the disabling provision may not apply. Because the second order specifically ordered the DVR functions to be disable from the "Infringing Products." Had he ordered the functions disabled from the "Adjudicated Products" for example, it could have been quite different. Words mean everything especially in a court order. The federal rules demand that a court order must be specific, concise, and without any ambiguity, if there is any ambiguity, such ambiguity must benefit the defendants.
Do you believe if the design around is non-infringing, the DVRs can still be defined as "Infringing Products?"
Of course there can be dispute, there cannot be any challenge to the claim constructions, true, but you cannot say there cannot be dispute. The question is whether the dispute has any material facts for support.
One of the common grounds for appeal is the abuse of discretion by the district court.
E* says we interpret the term "parse" (i.e. analyze) to mean analyze the start codes, when we interpret such term in the context of the entire patent, the patent specifiction, and the prosecution history of the patent.
The court says, no, you may not interpret the term "parse" to mean "analyze the start codes" because the term "start codes" does not appear in the software claim.
But the term "start codes" appear all over the places in the patent specification and in the prosecution history of the patent. What the judge basically saying then is I am prohibiting you from interpreting the claim term in the context of the entire patent, the patent specification and the prosecution history of the patent, you must interpret only in the context of the software claims themselves.
That is an abuse of the court discretion because both the appeals court and the case law say, when interpreting a specific patent claim term, one must assume it is interpreted not only in the context of the claims, but in the context of the patent specification, the entire patent, and the prosecution history of the patent.
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