TIVO vs E*

[jacmyoung]

Fuzzy wording and vague interpretation of legal documents. Yet another flaw in our legal system...nothing concrete...

That is the reason why the law is not as flawed as you might think, because if the words in the court order are "fuzzy" or "vague," the law says such order has no enforcement power. The law is specifically designed to deal with the sometimes courts' own deficiencies

 

[Greg Bimson]

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.

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.

The court provided a concise definition of "Infringing Products". There is nothing fuzzy about that definintion.

The court during the Markman hearings also provided a concise definition of "parsing audio and video data from said broadcast data". There is nothing fuzzy about that definition, either.

Just because DISH/SATS has argued ambiguity doesn't mean there is any ambiguity. Arguing there is ambiguity is simply obfuscation of that fact.

 

[jacmyoung]

The court provided a concise definition of "Infringing Products". There is nothing fuzzy about that definintion.

Exactly, because at the time of the framing of the injunction, those products were "Infringing Products." The question is, if the design around is non-infringing, can those products still be "concisely defined" as "Infringing Products?"

The court during the Markman hearings also provided a concise definition of "parsing audio and video data from said broadcast data". There is nothing fuzzy about that definition, either.

And E* is not contesting it, E* only says this is our interpretation in the context of ..., and the district court was wrong to limit E*'s interpretation to only the claims themselves. That is an abuse of discretion, a ground for appeal and reversal.

Just because DISH/SATS has argued ambiguity doesn't mean there is any ambiguity. Arguing there is ambiguity is simply obfuscation of that fact.

Arguing on ambiguity is one of the most common ways to win, I have cited such case law before and I think you can still recall

 

[Greg Bimson]

Exactly, because at the time of the framing of the injunction, those products were "Infringing Products." The question is, if the design around is non-infringing, can those products still be "concisely defined" as "Infringing Products?"

The definition didn't change simply because some software was pushed to those receivers.

Heck, if software was pushed to those receivers which disabled their DVR functionality, they'd still be "Infringing Products", because the definition is simply a list of the adjudged receivers.

And E* is not contesting it, E* only says this is our interpretation in the context of ..., and the district court was wrong to limit E*'s interpretation to only the claims themselves.

Limited? Five of five experts testified that PID filtering met the parse/analysis element of the claim limitation. The court was not wrong. The hearing regarding contempt was about continuing infringement. And PID filtering, upon which five of five experts agreed, meets the parse/analysis element of the claim limitation and is still being done. DISH/SATS does not get to dismiss the facts of the case, just like they dismissed the application of the disablement provision of the injunction.

However, I do agree that arguing ambiguity does present the easiest way to win. There just isn't anything ambiguous about evidence introduced during the trial being used again to prove that the changes were merely colorably different.

 

[vampz26]

That is the reason why the law is not as flawed as you might think, because if the words in the court order are "fuzzy" or "vague," the law says such order has no enforcement power. The law is specifically designed to deal with the sometimes courts' own deficiencies

I don't think so. Two wrongs don't make a right.

Especially amongst all this nonsense...

 

[Greg Bimson]

jacmyoung is correct. If a court order is vague, there is no enforcement of it.

 

[Curtis0620]

New lawsuit coming?

Ergen Advises Viewers To Check For Distant-Signal Eligibility After June 12 - 2009-06-10 20:45:13 | Broadcasting & Cable

 

[vampz26]

jacmyoung is correct. If a court order is vague, there is no enforcement of it.

I wasn't disagreeing with him.

 

[klegg]

The court provided a concise definition of "Infringing Products". There is nothing fuzzy about that definintion.

The court during the Markman hearings also provided a concise definition of "parsing audio and video data from said broadcast data". There is nothing fuzzy about that definition, either.

Just because DISH/SATS has argued ambiguity doesn't mean there is any ambiguity. Arguing there is ambiguity is simply obfuscation of that fact.

I guess, as a programmer, my point would be that these terms ARE ambiguous. A judge trying to define what these terms mean is dumb IMO. Even if he's getting his info from "experts".

I'm a programmer (although not on the platform being discussed), and when I read some of the "expert opinions" on some of this stuff stated as fact, I just roll my eyes.

 

[vampz26]

I guess, as a programmer, my point would be that these terms ARE ambiguous. A judge trying to define what these terms mean is dumb IMO. Even if he's getting his info from "experts".

I'm a programmer (although not on the platform being discussed), and when I read some of the "expert opinions" on some of this stuff stated as fact, I just roll my eyes.

+1 !

the irony here is that the only cold, hard facts here are the technical ones! All this legal mumbo-jumbo is ridiculous. You want to know what the differences are between. Tivo and a ViP? Just use one. Or pop the top off and look at it. That would simplify everything and definitely deliver more reliable, less questionable results. And of course, eliminate the judges and the lawyers so a decision can be made by people who actually know what they are talking about.

 

[Curtis0620]

+1 !

the irony here is that the only cold, hard facts here are the technical ones! All this legal mumbo-jumbo is ridiculous. You want to know what the differences are between. Tivo and a ViP? Just use one. Or pop the top off and look at it. That would simplify everything and definitely deliver more reliable, less questionable results. And of course, eliminate the judges and the lawyers so a decision can be made by people who actually know what they are talking about.

This is not a Hardware issue.

Unless the programmer left his notes in there.

 

[Greg Bimson]

I guess, as a programmer, my point would be that these terms ARE ambiguous. A judge trying to define what these terms mean is dumb IMO.

Well, then we shouldn't use dictionaries and never define anything. I am sure every contract ever signed would end up in court, and the courts couldn't do anything about it as there are no definitions. I think I'll use that argument to get out of my house and car payment.

The point is that Judge Folsom spelled out exactly what "Infringing Products" are. It is simply the list of eight products which were on trial and found infringing. The order then stated DISH/SATS was to disable all but 192,708 units of Infringing Products in customer use.

Parsing audio and video data from said broadcast data is rather a simple definition. Broadcasts, those containing programming, usually contain video, audio and data. "Digital" broadcasts usually contain more than one programming stream, so something must analyze the signal to grab only the program requested. That is the PID filter.

And none of those are ambiguous.

 

[Hall]

Heck, if software was pushed to those receivers which disabled their DVR functionality, they'd still be "Infringing Products", because the definition is simply a list of the adjudged receivers.

If that's the case, or at least Judge Folsom's opinion, Dish has every right to appeal and "win". Something can't be at fault simply because of it's name or that it's on a "list". That's no different than what I said earlier in the thread, in which Dish can't simply rename their receivers and walk away free and clear.

 

[rockymtnhigh]

New lawsuit coming?

Ergen Advises Viewers To Check For Distant-Signal Eligibility After June 12 - 2009-06-10 20:45:13 | Broadcasting & Cable

As I suspected, but off-topic for this thread. It will be discussed elsewhere, I am sure.

 

[jacmyoung]

The definition didn't change simply because some software was pushed to those receivers.

Heck, if software was pushed to those receivers which disabled their DVR functionality, they'd still be "Infringing Products", because the definition is simply a list of the adjudged receivers.

If what you are saying is even if the design around are non-infringing, the DVRs can still be "concisely defined" as Infringing Products, I disagree.

Limited? Five of five experts testified that PID filtering met the parse/analysis element of the claim limitation. The court was not wrong. The hearing regarding contempt was about continuing infringement. And PID filtering, upon which five of five experts agreed, meets the parse/analysis element of the claim limitation and is still being done. DISH/SATS does not get to dismiss the facts of the case, just like they dismissed the application of the disablement provision of the injunction.

Limited in terms of what kind of evidence is allowed by E*. The question is not what the five experts said back during the trial, the question is whether E* may now say their own experts were wrong, and now this is our new interpretation based on the evidence derived from the patent prosecution history and the patent specification, in the context of the entire patent. That is the only question I am asking now. I admit E* was inconsistent, so was TiVo. TiVo had its own opinion during the trial regarding the PID filter, TiVo testified during the trial the PID filter was doing the channel tuning only. Both parties now completely changed their opinions, this much even the judge said so during the hearing.

The E*’s five experts’ assertion during the trial is not evidence rather an opinion. Evidence is not the same as opinions. Yes a lot of evidence were introduced during the trial, and yes new evidence should be allowed in the contempt hearing. What the judge said was no, the E*’s new evidence derived from the patent specification and the prosecution history, in the context of the entire patent, may not be introduced now, the only evidence E* may use is the specific terms in the software claims. His such requirement is in direct contrast to what the appeals court said.

However, I do agree that arguing ambiguity does present the easiest way to win. There just isn't anything ambiguous about evidence introduced during the trial being used again to prove that the changes were merely colorably different.

Here the term ambiguity is not specific to the quality of the evidence, rather the language of the judge’s order. If the design around is non-infringing, then you cannot say the DVRs may still be concisely defined as Infringing Products, therefore the conclusion that the term "Infringing Products" still applies is based on a non-concise and "fuzzy" term at best, a wrong term at its worst, if the design around is non-infringing that is.

 

[Greg Bimson]

If that's the case, or at least Judge Folsom's opinion, Dish has every right to appeal and "win". Something can't be at fault simply because of it's name or that it's on a "list". That's no different than what I said earlier in the thread, in which Dish can't simply rename their receivers and walk away free and clear.

I suppose that when one is drive and sees that "Speed Limit 55" sign, it is only a suggestion.

Therefore I suppose when DISH/SATS "are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber", it is simply a suggestion.

The definition of Infringing Products? It is:

Defendants’ following DVR receivers (collectively the “Infringing Products”): DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.

The receivers are NAMED because they have been found to INFRINGE upon the patent. Just because something was pushed to those receivers doesn't mean they aren't still NAMED. And as I said, the action that was to be followed was to disable the NAMED receivers for the life of the patent. Therefore, once the kill command should have been sent, they are still NAMED receivers. They no longer infringe, but they are still NAMED.

And I am not an English major. But the "technologists" and "programmers" are suggesting definitions are not necessary, and that is very silly. MPEG2 and MPEG4 are STANDARDS, and if a file doesn't meet the DEFINITION of that format, then it is not MPEG. Programmers have to setup DECLARATIONS to DEFINE the task they are attempting to accomplish. The "technologists" and "programmers" see things in "black and white". Yet many cannot see this simple fact:

The order stated to disable. How many DVR's did DISH/SATS disable? Was there an "exception clause", like an "if-then" clause, which allowed DISH/SATS to escape the "disable provision"?

 

[Greg Bimson]

Here the term ambiguity is not specific to the quality of the evidence, rather the language of the judge’s order. If the design around is non-infringing, then you cannot say the DVRs may still be concisely defined as Infringing Products, therefore the conclusion that the term "Infringing Products" still applies is based on a non-concise and "fuzzy" term at best, a wrong term at its worst, if the design around is non-infringing that is.

No. The term "Infringing Products" only has one definition.

Remember that an injunction cannot refer to an outside document; it must be a self-contained document that contains all information. That is Federal Civil rule 65(d).

Within the injunction, "Infringing Products" was defined; that definition is in my previous post.

TiVo had its own opinion during the trial regarding the PID filter, TiVo testified during the trial the PID filter was doing the channel tuning only.

That is incorrect. All five experts testified that the PID filter met the limitation on the parse/analysis element. And the fact those five experts agreed can be used as evidence in the analysis of continuing infringement.

DISH/SATS would rather re-litigate a fact of the case, a fact which cannot be changed.

 

[vampz26]

This is not a Hardware issue.

Unless the programmer left his notes in there.

Oh, I'm sure its a combination of issues. Software now, hardware later, last week something else...

 

[vampz26]

I suppose that when one is drive and sees that "Speed Limit 55" sign, it is only a suggestion.

Therefore I suppose when DISH/SATS "are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber", it is simply a suggestion.

The definition of Infringing Products? It is:

Defendants’ following DVR receivers (collectively the “Infringing Products”): DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.

The receivers are NAMED because they have been found to INFRINGE upon the patent. Just because something was pushed to those receivers doesn't mean they aren't still NAMED. And as I said, the action that was to be followed was to disable the NAMED receivers for the life of the patent. Therefore, once the kill command should have been sent, they are still NAMED receivers. They no longer infringe, but they are still NAMED.

And I am not an English major. But the "technologists" and "programmers" are suggesting definitions are not necessary, and that is very silly. MPEG2 and MPEG4 are STANDARDS, and if a file doesn't meet the DEFINITION of that format, then it is not MPEG. Programmers have to setup DECLARATIONS to DEFINE the task they are attempting to accomplish. The "technologists" and "programmers" see things in "black and white". Yet many cannot see this simple fact:

The order stated to disable. How many DVR's did DISH/SATS disable? Was there an "exception clause", like an "if-then" clause, which allowed DISH/SATS to escape the "disable provision"?

Man, are you still embedding subtle personal attacks and trying to pass off your opinion as fact in every post? Good god, get over yourself!

This needling behavior of yours needs to stop because that's the kind of thing that causes trouble around here. And if you can't handle the simple fact that any form of advancing tehnology can change a larger design, even a patented one, than that is something you need to learn on your own WITHOUT these subtle personal attacks against me or other technical members of this forum who have as sound of a personal opinion as your own.

Thank you.

 

[Greg Bimson]

And if you can't handle the simple fact that any form of advancing tehnology can change a larger design, even a patented one, than that is something you need to learn on your own WITHOUT these subtle personal attacks against me or other technical members of this forum who have as sound of a personal opinion as your own.

I can handle the fact that "advancing technology" can change a larger design. In this case, the ADDITION of MPEG4 formats to the ViP-series receivers which can also decode the same MPEG2 formats that have been found to infringe a patent which is not format-specific most likely does NOT change the design in relation to the patent.

I can certainly believe "advancing technology" can be used to create new patents. The problem is getting around the old one. I am flexible about that possibility. So maybe I am not closed-minded about that. But in relation to this case, I am, as the design changes are not significant enough to remove the limitations on these claims. And yes, this is my opinion.

However, as for personal attacks, programmers and technologists are stating their opinions that definitions mean nothing. That is quite ironic. And I will point that out ad infinitum as it simply appears that the application of definitions in said fields is enormous. Definitions are needed in those fields. If one wishes to call that a personal attack, so be it. It doesn't meet my definition of a personal attack.