Here's some of it:
"EchoStar's argument that the Court can no longer exert its authority over the DVRs once EchoStar has modified their software is not only an improper collateral attack on the injunction (as discussed above), it is wrong. The Federal Circuit has approved the district courts' authority to rule upon and to enjoin so-called "design arounds" in injunctions in patent infringement cases. For example, in Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., the district court issued an order enjoining the defendant "from making, using, and/or selling any positive displacement flowmeter" and prohibiting the defendant from engaging in commercial activities for any allegedly redesigned flowmeter product without obtaining the court's permission in advance. 32 U.S.P.Q.2d 1747, 1757 (S.D. Tex. July 12, 1994), aff'd in part and rev'd in part on other grounds, 154 F.3d 1345, 1356 (Fed. Cir. 1998). The Federal Circuit affirmed this portion of the order, finding that "the district court reasonably concluded that such measures were necessary in this case to compel compliance with the court's orders." 154 F.3d at 1356. The Federal Circuit approved a similar provision, prohibiting the defendant from selling any allegedly redesigned device without obtaining the court's permission in advance, in Spindelfabrik Suessen-Schurr v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft, 903 F.2d 1568, 1577 (Fed. Cir. 1990). In each of these cases, the defendants engaged in precisely the same tactic that EchoStar has here, claiming to have redesigned a product to avoid infringement and, in each case, the court determined that it had authority over the allegedly modified product. Spindelfabrik, 903 F.2d at 1571; Additive Controls, 32 U.S.P.Q.2d at 1755, 1757.
Here, EchoStar knew that it was modifying its software when the injunction issue was being briefed and argued before this Court. EchoStar could have and should have requested a "pre-clearance" provision like the ones above. EchoStar made the decision to go ahead in secrecy without any Court approval instead. But that did not make EchoStar's modified products automatically exempt from the Court's injunction. To the contrary, under the language of the injunction, they remained subject to the disablement requirement. To exempt them would require a decision by this Court, not by EchoStar. As EchoStar's behavior confirms, the Court's decision to issue a simple and unambiguous order, "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in [DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942]" was a wise one. EchoStar's decision to be less than candid with this Court and with the Federal Circuit – by seeking a stay of the injunction without disclosing its efforts to modify the software and then, if necessary in the future, using the software modifications as an argument for disregarding the injunction's disablement provision – was made deliberately. While EchoStar may now be arguing that the spirit of the injunction allows for modified software, its previous positions with this Court and with the Federal Circuit coupled with its conduct show that it was attempting to circumvent the injunction, not comply with it. Such conduct constitutes contempt of court. "
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"TiVo respectfully requests that the Court issue an Order holding EchoStar in contempt of the Permanent Injunction and requiring EchoStar to comply by disabling the DVR functionality within seven calendar days in the DVR receivers specified in the injunction (i.e., DP-501, DP- 508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942). "
"EchoStar's argument that the Court can no longer exert its authority over the DVRs once EchoStar has modified their software is not only an improper collateral attack on the injunction (as discussed above), it is wrong. The Federal Circuit has approved the district courts' authority to rule upon and to enjoin so-called "design arounds" in injunctions in patent infringement cases. For example, in Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., the district court issued an order enjoining the defendant "from making, using, and/or selling any positive displacement flowmeter" and prohibiting the defendant from engaging in commercial activities for any allegedly redesigned flowmeter product without obtaining the court's permission in advance. 32 U.S.P.Q.2d 1747, 1757 (S.D. Tex. July 12, 1994), aff'd in part and rev'd in part on other grounds, 154 F.3d 1345, 1356 (Fed. Cir. 1998). The Federal Circuit affirmed this portion of the order, finding that "the district court reasonably concluded that such measures were necessary in this case to compel compliance with the court's orders." 154 F.3d at 1356. The Federal Circuit approved a similar provision, prohibiting the defendant from selling any allegedly redesigned device without obtaining the court's permission in advance, in Spindelfabrik Suessen-Schurr v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft, 903 F.2d 1568, 1577 (Fed. Cir. 1990). In each of these cases, the defendants engaged in precisely the same tactic that EchoStar has here, claiming to have redesigned a product to avoid infringement and, in each case, the court determined that it had authority over the allegedly modified product. Spindelfabrik, 903 F.2d at 1571; Additive Controls, 32 U.S.P.Q.2d at 1755, 1757.
Here, EchoStar knew that it was modifying its software when the injunction issue was being briefed and argued before this Court. EchoStar could have and should have requested a "pre-clearance" provision like the ones above. EchoStar made the decision to go ahead in secrecy without any Court approval instead. But that did not make EchoStar's modified products automatically exempt from the Court's injunction. To the contrary, under the language of the injunction, they remained subject to the disablement requirement. To exempt them would require a decision by this Court, not by EchoStar. As EchoStar's behavior confirms, the Court's decision to issue a simple and unambiguous order, "disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in [DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942]" was a wise one. EchoStar's decision to be less than candid with this Court and with the Federal Circuit – by seeking a stay of the injunction without disclosing its efforts to modify the software and then, if necessary in the future, using the software modifications as an argument for disregarding the injunction's disablement provision – was made deliberately. While EchoStar may now be arguing that the spirit of the injunction allows for modified software, its previous positions with this Court and with the Federal Circuit coupled with its conduct show that it was attempting to circumvent the injunction, not comply with it. Such conduct constitutes contempt of court. "
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"TiVo respectfully requests that the Court issue an Order holding EchoStar in contempt of the Permanent Injunction and requiring EchoStar to comply by disabling the DVR functionality within seven calendar days in the DVR receivers specified in the injunction (i.e., DP-501, DP- 508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942). "
