Dish Asks Appeal Court to Allow Recording-Service Use

[pabeader]

plus it's ony 7.5 billion. one would think they will spend that much one way or the other. just buy them already and be done with it. then we can concentrate on more important things.

 

[jacmyoung]

First off, the above news report did not even get the attorney's name right, Mr. Waxman was TiVo's attorney, not E*'s.

Second, anyone who has listened to the oral argument audio clip will tell you it does not look good for TiVo. If you do not believe me, just go read the TiVo investors' forums, when you see those investors trashing Judge Rader calling him a moron and clueless, you know something was up

I just hope they realize Judge Rader is Judge Folsom's boss.

 

[r424chevy48II]

Charlie loosen up with some of that cash flow and just buy tivo out!!!! And then you can go file a lawsuit against somebody else or vice versa, isn't that how your game is played Charlie????

 

[navychop]

Naw. Let Tivo crash and burn. They never had a viable business plan, and they did not invent what they claimed. Replay had a product on the street first. Trying to make a living thru legal action, rather than being a productive part of the economy, is just a drag on the rest of us.

 

[r424chevy48II]

ya but Charlie likes to play his f****** games too though!!!!!!!!!!!!!!!!!!:rant:

 

[harshness]

The VIP Series 622, 722 and 922 would not be shutoff because they are hardware based not software based?

Those models are not named in this case. TiVo would have to start over with those models in a new suit assuming a success in the existing case.

 

[harshness]

Just wondering has TIVO showed a profit yet?

In a few quarters (out of 40), they have showed a profit on the books. This doesn't necessarily mean that they were actually profitable, just that they figured out a way to arrange things so that it appeared to be the case.

 

[navychop]

I think they showed a profit when Dish paid them that hundred million, more or less.

I think their subscriber numbers are still declining.

 

[Skyking69]

Guys and gals,

This thread is pretty entertaining. It is obvious that some people on the forum have a real hard on for TiVo, lawyers and/or both. What I wanted to do was lift some previous statements and either add a remark or ask for clarification. And to be clear, where someone states as fact something relevant to the legal proceedings, would you either provide a citation in media or the court record that buttresses your statement, or alternatively tell us if you have passed the bar as an attorney? Absent some kind of documented media report, information entered into evidence or indication that you are in fact an educated subject matter expert will help us to all know just how relavent your input was.

Selected Quotes and Input:

"Barring Dish and EchoStar’s service “is not a meaningful remedy,” Seth Waxman, an attorney for the companies, told a three-judge panel of the U.S. Court of Appeals for the Federal Circuit in Washington."

A number of posters wrote about this and some were right on and some missed the target just a bit. First, it is an appeals court argument. That does not make it fact, only review of the courts ruling, after they have done so, will establish that. Second, this statement could be viewed as specious from the standpoint that Mr. Waxman knows the fastest way for D*/E* to be compelled to settlement discussions would be if a major service they provide were threatened with shutdown. Remedy through shutdown of the service would be highly undesirable to D*/E*, but so would having to pay large amounts of court imposed penalty. As such, an argument could be made that the appearance the court is or is not prepared to impose one of them; either of those scenarios could tip the balance in bargaining either direction such that one or the other may become more motivated toward a negotiated solution/settlement between the parties.


To the question:

"Do all DISH DVR Services infringe on these Patients or just certain ones. If Dish loose would I loose my VIP612?"

Curtis0620 replied:

"It would only be the 8 listed in the lawsuit."

I would like to see an explicit citation on this one or have Curtis0620 explain his expertise to make that such a definitive statement.

Curtis0620 also said:

"...a judge cannot make a decsion that would potentially put a company out of business. It it outside any single judge's province to make such a ruling unless there is a clear violation of law."

Question: What do these companies all have in common?

ABB Lummus Global 2006
A-Best Products 2002
ACandS, Inc. 2002
Amatex Corp. 1982
American Shipbuilding Co. 1993
Ancor Holdings Inc./National Gypsum 1990
API, Inc. 2005
Armstrong World Industries 2000
Artra Group, Inc. 2002
Asarco, Inc. 20051
Asbestos Claims Management Corp. 2002
Babcock & Wilcox Co. 2000
Brauer Supply Co. 2005
Brunswick Fabricators 1998
Burns & Roe 2001
Carey Canada, Inc. 1990
Cassiar Mines 1992
Celotex Corp. 1990
C.E. Thurston 2003
Christy Refractories Co. LLC 2008
Combustion Engineering 2003
Congoleum Corp. 2003
Dana Corporation 2006
Delaware Insulations Distributors 1989
Eagle Pitcher Industries 1991
EJ Bartells Co., Inc. 2001
Federal Mogul Corp. 2001
Flintkote Co. 2004
Flintkote Mines Ltd. 2004
Forty-Eight Insulations 1985
Fuller-Austin Insulation Co. 1998
Gatke Corp. 1987
G-I Holdings 2001
GlT/Harbison-Walker/AP Green 2002
Harnischfeger Corp. 1999
Hercules Chemical Co. 2008
Hillsborough Holdings 1989
[source: law firm Crowell & Moring LLP (Crowell & Moring | An International Law Firm | Washington DC - California - New York - London - Brussels ) ]

Dow Corning
[source: Law Library - American Law and Legal Information (Tort Law - Breast Implant Lawsuits) ]

Answer: They were all put into bankruptcy by the negative outcome of litigation.

Admittedly, they were product liability cases, but the principle is the same - A jury finding and judicial imposition of a fine, or even simply litigation costs, can very well lead to bankruptcy and even total collapse of a company. Are the cases cited above fair? That is beyond the scope of my comment. My point is this - It appears to me that Curtis0620's statement is overly broad and demonstrably incorrect so I would encourage him to elucidate on this and the previous statement I highlighted.


Pepper said:

"What do you call a bus full of lawyers at the bottom of a ravine? A good start."

I understand some people's sentiment on this, I read one defense of lawyers and the good they do and frankly I didn't feel it was all that compelling. What I will say is if you are wrongly arrested and your attorney gets you cleared of the charge, it will likely change your view of them. Similarly, if you get sued and your attorney prevails for you, I am hoping you will be angry at the person or company that sued you, not the lawyer that prevailed in your defense. Are both scenarios likely to cost a lot of money? You bet, it probably will. If you are diagnosed with a brain tumor that too will be expensive. The education and practice to become proficient in legal defense and surgery are quite expensive and difficult. You nor I work for free, neither do lawyers or doctors. Again, I understand the sentiment, but I am guessing it is expressed in a vacuum as opposed to having prevailed as the result of effective representation.


RVD420 said:

"Dish/Echostar can't purchase Tivo. There is a nasty poison pill clause that makes the purchase of Tivo darn near impossible." and navychop replied "Poison pills can be negotiated. They, too, are a tactic."

navychop responded perfectly. Said another way, poison pills are put into place in an effort to dissuade a hostile takeover. Sure, in a negotiated merger/acquisition there may be some hostility on both sides of the table, but the supposed intent is to force negotiation on enhanced terms benefiting the acquired party and the financial interest of their owners (i.e. shareholders). Does it always work out to dissuade a hostile takeover? No, and there are plenty of examples, but I won't bother listing any due to the length of this post already. Does a poison pill sometimes lead to litigation because owners (i.e. shareholders) think the poison pill does more to protect entrenched management rather than increase the value accrued to them? Yes, frequently.


harshness, citing a previous question, stated:

"Those models are not named in this case. TiVo would have to start over with those models in a new suit assuming a success in the existing case."

Again, I view that as a very broad statement and would like to either see a citation or know more about harshness's background to make such a definitive remark. While another entire trial might be required, one appeal strategy is to not "muddy the water" by adding issues while on appeal. If TiVo prevails and subsequently believes their patent(s) are still being infringed, they could again go to the original trial court and request another contempt ruling from the judge. Would they prevail? That would be anybody's guess, but absent a citation I think harshness's statement is overly broad.


This entire topic seems to spark a lot of emotion and I am frankly at a loss to understand it. Whether you love or loath TiVo and their management, whether you love or loathe D*/E*, why the level of enmity is not at all clear to me. I want to give everybody something to chew on. Let me start off by saying I do not, DO NOT, have any interest in the outcome of this litigation whatsoever. And let me also say I could not care less who prevails. If we start off from that position and I say to you TiVo may be undercapitalized, may be marginally (or not at all) profitable, etc.; if we say for a moment that their case has merits, why would D*/E* defend so aggressively? I could give numerous examples but the one that comes to mind immediately is the case of Robert Kearns. If you Google his name you will see an example of a guy that invented the proverbial better mouse trap - Intermittent wipers for automobiles. If you look at the Wikipedia page for Mr. Kearns ([ame="http://en.wikipedia.org/wiki/Robert_Kearns"]Robert Kearns - Wikipedia, the free encyclopedia[/ame]), in plain English you will see what he was up against. Corporate titans willing to spend millions of dollars, even tens of millions of dollars, all in an effort to run out the clock and avoid having to pay the inventor. Here is a quote that may sound familiar in the discussion of TiVo and D*/E*: "The legal argument that the auto industry posed in defense was that an invention is supposed to meet certain standards of originality and novelty. One of these is that it be "non-obvious." Ford had claimed that the patent was invalid because Kearns' intermittent windshield wiper system had no new components."

While I cannot say which party is right, in total or in part, what I can say is the motives of each party can oftentimes be questioned. Rather than engaging in speculation, particularly if that speculation is made by people whom we cannot prove or disprove have either an undisclosed vested interest in the outcome or the professional training and experience to make input to the degree that they do; I think it might be useful to try and stick to facts. I have a saying - Fact based opinion may be persuasive. Emotion based opinion devoid of fact should not be persuasive. Said another way, now deceased US Senator Daniel Patrick Moynihan is famously quoted as saying (I will paraphrase) - Everyone is entitled to their own opinion. Everyone is not entitled to their own facts.

I would personally like to see this entire subject be limited to fact based input, devoid of the emotion I have seen here and in other forums discussing this topic. And if I highlighted you, please take no personal umbrage. I simply want to know the basis for your input on the point I identified. OK, flame on.

Regards,

Phil

 

[Voyager6]

Skyking69, the answers to most of your questions can be found in this thread. There is also another thread on the original lawsuit somewhere in the archives. You are coming in pretty late into the discussion.

 

[Skyking69]

Voyager6,

Actually, even though the thread at the link you provided is nearly two hundred and fifty pages long, from a previous examination I saw a lot of opinion that was not at all supported by documentation, or clearly made by people seemingly without the legal expertise to offer a valid fact based opinion. Some of it is, and while some of the remarks are interesting and apparently written by people with sound legal reasoning when this one rolled onto the forum list I decided to take the time and make my post. In fact, none of the questions I posed above were directly addressed unless you would wish to point me to the specific page.

I am not sure why the wave off with the statement "You are coming in pretty late into the discussion." I think objective readers will look at what I posted and draw their own conclusions as to its validity, timeliness, objectivity and general interest. I appreciate your input if for no other reason that it points to a very thorough discussion anyone interested in the case should review.

Edited to add: Tip of the hat to Greg Bimson as he squarely tried to keep the legal discussion factually on point. Having missed the remark that the thread was going to be locked for a while and then moved to the war zone; rather than coming in late it appears what I really did was wade into some kind of minefield. I hope my post to this thread is taken as intended, trying to similarly keep the discussion fact based. I really do not understand the emotional vitriol this topic engenders.

Regards,

Phil

 

[Voyager6]

My point was that this discussion has been going on at SatGuys for literally years. You just joined SatGuys in September. Now, years after the initial trial and after the appeal and after the sanctions hearing, you come along and demand credentials, references and specific links. Yes, you are late to join the discussion.

 

[jacmyoung]

In other words, he is in the wrong place and wrong time to ask those questions He sounded like someone who just arrived from Mars, even you had missed him on the way here, Voyager

So a few pointers for you. Earthly creatures are operated by emotions, the same facts can yield entirely different opinions on Earth, by creatures of equally high credentials, and late comers on Earth usually get what is left, which often times is something much less than nothing.

 

[David_Levin]

jacmyoung - What is your rationale ?

Second, anyone who has listened to the oral argument audio clip will tell you it does not look good for TiVo.

On what grounds to you feel this is moving against TiVo ?

1) Is the Software Work-Around still on the Table? Folsom said no. Is that what E* is appealing ?

2) Something related to the judgment/penalty. It's excessive and must be reevaluated ?

3) Then there's the PTO patent reexamination. That just seems like a big wild card. Depends on the timing. My understanding it that even if the patent is invalidated it doesn't effect prior awards or rulings. Would this be why E* will wait as long as possible to pay the next 200M installment ?

Or E* will pay TiVo month-2-month while they wait for the Patent Decision.

 

[jacmyoung]

On what grounds to you feel this is moving against TiVo ?

I already said, on the ground that the TiVo investors did not like what they heard

Seriously, this is Judge Rader's words at the beginning of the hearing:

"Infringing is all we can enjoin, of course!"

He then grilled the E* attorney why E* did not bring the issue to the appeals court during the last appeal. Had E* tried to clarify the issue, "we could have with a stroke of our pen [ordered the injunction vacated and/or modified]..."

E*'s response of course was, why? Based on our interpretation, the injunction only enjoined the "Infringing Products", why would we have imagined anything else and needed to clarify it?

1) Is the Software Work-Around still on the Table? Folsom said no. Is that what E* is appealing ?

Judge Rader then grilled the TiVo attorney mostly on the design around issue, asking him how could TiVo say the PID filter analyzed the audio and video data when the data were scrambled before they hit the PID filter? The response was, but not all data were scrambled.

By such response, Judge Rader got the TiVo attorney to admit the PID filter could not analyze audio and video data if the data were scrambled. That admission alone refutes TiVo's contention the PID filter analyzes audio and video data. That IMHO should be enough to throw out TiVo's infringement theory.

2) Something related to the judgment/penalty. It's excessive and must be reevaluated ?

Not a single word about the sanctions. You would think if the appeals court had any inclination to uphold Judge Folsom's ruling, they would at least asked parties' positions on how much should be the right amount of the sanctions? Draw your own conclusion on that one.

3) Then there's the PTO patent reexamination. That just seems like a big wild card. Depends on the timing. My understanding it that even if the patent is invalidated it doesn't effect prior awards or rulings. Would this be why E* will wait as long as possible to pay the next 200M installment ?

Not a word of it. Is it even necessary?

Or E* will pay TiVo month-2-month while they wait for the Patent Decision.

There has never been any intention by the court to impose a compulsory licensing agreement.